Australian Immigration Daily News

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.

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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.

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The Migration (Granting of Contributory Parent Visas, Parent Visas, and Other Family Visas During Financial Year 2023-2024) Instrument (LIN 24/004) 2024, issued under the authority of the Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs, amends the Migration Regulations 1994 to specify the maximum number of various family visas that may be granted within the financial year 2023-2024.

This legislative instrument, effective from the day following its registration until its repeal on July 1, 2024, sets caps for the Contributory Parent visas at 6,800, Parent visas at 1,700, and Other Family visas at 500. These numbers include specific allocations for the Retiree Pathway under the Contributory Parent and Parent visa categories.

The instrument aims to manage the equitable and orderly processing of visa applications in these categories, addressing the significant demand that outweighs the available supply of visa places. This capping mechanism, an annual process since 2011, aligns with the Australian Government’s migration program numbers announced during the budget. The decision reflects consultations involving internal and external stakeholders, public submissions, economic forecasts, and various other considerations to determine migration program numbers.

The Migration Amendment (Dependent Secondary Partner Visa Applicants) Regulations 2024, issued under the authority of the Minister for Immigration, Citizenship Migrant Services, and Multicultural Affairs, introduces significant amendments to the Migration Regulations 1994. These amendments facilitate the grant of Subclass 309 (Partner (Provisional)) and Subclass 100 (Partner) visas to a specific cohort of secondary applicants who, due to extended processing times caused by the now-revoked Ministerial Direction 80, no longer meet the age requirement as a member of the family unit (MoFU).

Ministerial Direction 80 previously assigned the lowest processing priority to Family visa applications involving sponsors who were permanent residents entering Australia as Unauthorised Maritime Arrivals (UMAs), leading to delayed visa processing. The amendments address the impact of these delays by allowing secondary applicants who have aged beyond 23, the usual MoFU age limit, to qualify for visa grants based on their dependency on the primary applicant, irrespective of age.

This legislative adjustment is a targeted response to the disadvantages faced by affected families due to the processing priorities under Ministerial Direction 80. It ensures that applicants who made combined visa applications before 9 February 2023, but were not yet finally determined, are not further disadvantaged by age criteria. This change underscores the government's commitment to family unity and addresses human rights concerns by facilitating family reunification and reducing discrimination against families affected by processing delays.