Australian Immigration Daily News

The recent decision in the case of Brown V Minister for Home Affairs being  an appeal from a decision at the FCC is of interest to the profession.

The relevant citation for the Appeal decision is Brown V Minister for Home Affairs [2018] FCA 1643.

The hyperlink to the reported decision is here: ( http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2018/1643.html?context=1;query=Brown%20V%20Minister%20for%20Home%20Affairs%20;mask_path= )

Subclass 190 is designed for skilled visa applicants who have submitted an expression of interest (EoI) in SkillSelect and, after being nominated by a State/Territory government body, have received an invitation to apply for this visa. Subject to receiving an invitation to apply, persons can apply for the subclass 190 visa from in or outside Australia.  Each Australian state and Territory is responsible for managing their 190-visa intake.  This includes management of occupation lists as well as any other additional requirements imposed by the State.

From 29 November 2018, the Australian Capital Territory (ACT) is replacing the current first-in, first-served system with a merit-based assessment matrix that will moderate supply and demand throughout the year and more effectively address the ACT’s skills needs. The 190 visa subclass will continue to focus on occupations that are listed as ‘in-demand’, and assess a range of factors that support successful settlement and contribution to the ACT economy, such as previous residence and other ties to the ACT, English proficiency, and employment in the ACT.

Impact on existing applicants:

Skilled News Letter – Migration Alliance Summary

Department of Home Affairs released their November edition of Skilled Newsletter.  Topics of interests include Temporary Skills Shortage (TSS) visa, Employer Nomination Scheme, Transfer of Labour Agreements to online platform and more.

Migration Alliance brings you the following summary to help you to prepare your application under the new regime.

How many times have you been told: “The deadline for filing an application for merits review to the Administrative Appeals Tribunal is absolutely fixed, rigid and inflexible! There is no way to get the deadline extended under any circumstances. The Tribunal simply does not have the power to grant an extension of the deadline, even if it were inclined to do so.”

The principle that “the filing deadline cannot be extended” is undoubtedly something that is taught in every course that Registered Migration Agents must take to be eligible for registration with the Office of the Migration Agents Registration Authority.  I even recall that this was something that was taught when I took a course sponsored by the Migration Institute of Australia, a short three-day course on “introduction to migration law for lawyers”.

So it has been an “article of faith” that the filing deadline cannot be extended, no matter what.

The instrument repeals IMMI 18/102 (F2018L00773) made under the Regulations, specifically, subregulation 2.07(5), paragraph 1224A(3)(a), subparagraph 1224A(3)(b)(iii) and subitem 1225(5) of Schedule 1 to the Regulations and subclause 417.211(2) and paragraphs 462.212(b) and 462.221(c) of Schedule 2 to the Regulations and in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (the AIA).

Subsection 33(3) of the AIA states that where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character, the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument. 

The instrument also operates to specify the minimum standard of education qualifications an applicant for a Work and Holiday (Temporary) (Class US) visa and a Subclass 462 (Work and Holiday) visa must satisfy at the time of application.