Australian Immigration Daily News

The document, "Migration (Class of Persons for Nil VAC – CCAMLR) Instrument (LIN 24/036) 2024," issued by the Minister for Immigration, Citizenship and Multicultural Affairs, provides an explanatory statement for a legislative instrument that facilitates visa application processes for individuals involved with the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR).

Key Points of the Instrument:

• Effective Date: The instrument took effect the day after its registration on the Federal Register of Legislation.
• Purpose: To exempt specified classes of persons from the visa application charge (VAC) when applying for visas to enter Australia for official business related to CCAMLR. This includes representatives of a Party, their family members, CCAMLR staff, experts, consultants, and observers.
• Visa Classes Covered: Subclass 400 (Temporary Work Short Stay Specialist), Subclass 600 (Visitor Visa for Business and Tourist streams), and Subclass 408 (Temporary Activity Visa).
• Background: The implementation aligns with the Headquarters Agreement between CCAMLR and the Australian Government and is intended to streamline visa processes for CCAMLR applicants, enhancing their access to Australia in support of their roles.
• Consultation: Input was received from various governmental bodies, including the Attorney-General’s Department, Department of Foreign Affairs and Trade, and the Australian Antarctic Division, which supported the policy.
• Regulatory Impact: The Office of Impact Analysis confirmed that no detailed impact analysis was necessary due to the minimal number of applications affected.

This instrument underscores Australia's commitment to supporting international cooperation in the conservation of Antarctic marine resources by simplifying legal and administrative procedures for those involved with CCAMLR.

The document titled "Migration English Language Tests and Evidence Exemptions for Sc500 Student visa amendment pathway programs specification 2024" is an authoritative instrument issued under the Migration Regulations 1994, specifically under subclause 500.213(3). Officially known as LIN 24/043, this instrument amends the existing LIN 24/022 to specify more clearly the English language proficiency requirements necessary for applicants of the Subclass 500 (Student) Visa, particularly those enrolled in designated pathway programs.

The amendment introduces a revised definition of "eligible pathway program" and lists specific registered courses that meet this definition, thereby allowing enrolled students to benefit from a reduced English language test score requirement. The purpose of these modifications is to enhance the transparency and accessibility of the requirements, aiding both students and educational institutions.

The document confirms that the instrument took effect the day after its registration and outlines the process and rationale behind the amendment, including consultation with the education sector and compliance with legislative requirements. Additionally, it notes that this legislative instrument is exempt from disallowance and does not require a Statement of Compatibility with Human Rights, as per the stipulations in the Legislation Act 2003 and relevant migration regulations.

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.