Australian Immigration Daily News

The Migration Amendment (Bridging Visas) Regulations 2024, as authorised under the Migration Act 1958, introduce significant clarifications and adjustments to the existing framework for granting Bridging R (Class WR) visas (BVR). These changes, promulgated by the Minister for Immigration, Citizenship, and Multicultural Affairs, aim to refine the process for awarding BVRs to eligible non-citizens who may find themselves unlawfully in Australia or holding a visa other than a substantive, criminal justice, or enforcement visa at the time of the grant.

The necessity for these amendments arises from the operational requirements following the High Court's decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 on 8 November 2023. This judgment underscored the importance of BVRs in managing the immigration statuses of non-citizens released from immigration detention, ensuring they are subject to enforceable visa conditions conducive to community safety and individual circumstances.

Prior to these amendments, the Migration Regulations 1994 stipulated conditions under which a BVR could be granted without an application from the non-citizen, specifically catering to initial grants and subsequent grants where modification of visa conditions was deemed necessary for community protection purposes. The amended regulations eliminate the prerequisite for a non-citizen to already possess a BVR to qualify for a subsequent grant, facilitating a more streamlined and responsive administration of the BVR scheme.

The Family Assistance (Pacific Australia Labour Mobility Scheme—Child Care Subsidy) Determination 2024, issued by the Minister for Education under the A New Tax System (Family Assistance) Act 1999, establishes a framework to support Pacific Australia Labour Mobility (PALM) scheme participants and their families. This scheme allows eligible employers to hire workers from select Pacific countries and Timor-Leste for various roles in Australia, aiming to foster skill development, address youth unemployment, and enhance regional economic integration.

As part of the 2022-23 Budget measure "Enhancing the Pacific Australia Labour Mobility Scheme," primary visa holders on long-term placements (one to four years) can bring their partners and children to Australia, supported by their employer. This initiative begins with a pilot program designed to assess its implementation based on specific criteria.

The Determination amends the Family Assistance Act to permit PALM scheme workers and their families approved for family accompaniment to access family tax benefits and child care subsidies (CCS). This move aims to alleviate financial burdens and reduce workforce participation barriers, ensuring that family reunification in Australia does not jeopardise the success of the PALM scheme participants' placements.

On April 10, 2024, the High Court of Australia rendered a significant judgment in the case of LPDT v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs [2024] HCA 12, addressing pivotal issues of jurisdictional error and the principle of materiality within administrative law. The appeal, unanimously allowed by the court, revolved around LPDT, a Vietnamese national whose visa cancellation was under scrutiny.

LPDT arrived in Australia in 1997 and was convicted of various offenses between 2011 and 2017, leading to the mandatory cancellation of his visa in 2019 under section 501(3A) of the Migration Act 1958 (Cth). Following an unsuccessful revocation attempt and a subsequent appeal to the Administrative Appeals Tribunal (AAT), the matter was escalated to the High Court. The Tribunal's compliance with Direction 90, a ministerial directive, was a focal point of contention, particularly its evaluative assessment of mandatory considerations in deciding whether there was "another reason" for visa revocation.

The High Court's decision underscores the tribunal's error in interpreting and applying Direction 90, especially regarding the seriousness of LPDT's criminal offenses and the associated risk of reoffending. The court clarified the threshold of materiality, noting that jurisdictional error involves a breach of a statutory decision-making condition that could realistically affect the decision's outcome. The error was deemed material and jurisdictional since there was a realistic possibility that the decision could have been different without the tribunal's misconceptions.

In a landmark ruling on April 10, 2024, the High Court of Australia made a significant decision that clarifies the extent of a Minister's duty when personally considering representations for visa revocation under section 501CA(4) of the Migration Act 1958. This case, involving the Minister for Immigration, Citizenship, and Multicultural Affairs and respondent Joseph Leon McQueen, centered on whether the Minister must personally read and examine representations made by individuals seeking visa revocation, or whether reliance on summaries prepared by the Department of Home Affairs suffices.

The High Court concluded that the Minister is not mandated to personally read every submission made in such cases. Instead, the Minister can fulfill their duty to consider representations by relying on accurate and comprehensive summaries provided by the Department. This decision underscores that the Minister can effectively exercise their discretionary power without directly engaging with every detail of the representations, provided the essence of the submissions is accurately captured and considered.

This ruling is a notable win for the Registered Migration Agents (RMA) profession, as it affirms the practicality and legality of using departmental summaries in the decision-making process, ensuring efficiency while maintaining the rigor of consideration required under the law. It brings clarity to the operational procedures within immigration law, reinforcing the collaboration between Ministers and their departments in processing visa revocation requests.

Thank you for being a valued partner 

At Migration Alliance, we are dedicated to nurturing strong partnerships within the industry, and we deeply value our collaboration with Allianz Partners. Your trust and support have been instrumental in our shared success, and for that, we extend our heartfelt appreciation. 

To express our gratitude and strengthen our partnership even further, we are thrilled to offer an exclusive 15% discount on Allianz Travel Insurance for Migration Alliance members.

Please refer to this flyer IH-Partner-Travel-Discount-Flyer---Apr24.pdf for the discount code and relevant terms and conditions. Kindly note that this code is valid until April 30th, 2024. For May 2024, a new code will be provided to ensure continued benefits for our valued partners.

We eagerly anticipate the opportunity to continue serving you and to further enhance our partnership. Should you have any questions or require further assistance, please do not hesitate to reach out.