Australian Immigration Daily News

 Would you be willing to believe that there are occasions when an application for judicial review of a decision of the Tribunal is sometimes relatively easy?

And that sometimes the Tribunal makes an obvious mistake – one that is so obvious that you have to wonder why the case ever went to final hearing before a judge of the Federal Circuit Court? And why the Minister and his legal representatives did not simply concede that a jurisdictional error had been made, and that the case should be remitted to the Tribunal for “re-determination in accordance with law”?

Just such a case was recently reported on Austlii, Thapa v Minister for Immigration & Anor, (2018) FCCA 2182 (10 August 2018).

The instrument repeals IMMI 16/066 (F2016L01198) made under 1.11B of 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.

Source:

This Legislative Instrument repeals IMMI 13/028. IMMI 13/028 operated to specify the temporary skilled migration income threshold for the purposes of paragraph 2.72(10)(cc) of the Migration Regulations 1994 (the Regulations), and the annual earnings for the purposes of subregulation 2.72(10AB) and paragraph 2.79(1A)(b) of the Regulations.

Paragraph 2.72(10)(cc) and subregulation 2.72(10AB) of the Regulations have been repealed by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018. As at 18 March 2018, the annual earnings for the purposes of paragraph 2.79(1A)(b) are now specified in the Legislative Instrument IMMI 18/033.

Source:

The instrument:

This instrument, LIN 18/036, is made under subsections 140GBA(4), 140GBA(5) and 140GBA(6A) of the Migration Act 1958 (‘the Act’).

The instrument operates to determine the period, the manner, and the kinds of evidence of labour market testing. In particular the instrument:

a. determines a period within which labour market testing is required in relation to a nominated occupation;

Recent legislative changes to skilled migration particularly those relating to the introduction of subclass 482 visa placed further restrictions on student visa holders’ ability to remain in Australia on completion of their studies.

The Graduate Work stream is one of the streams which is open to graduates with an eligible qualification, including those from the Vocational Education and Training (VET) sector, who graduate with skills and qualifications that relate to an occupation that is considered in demand in the Australian labour market on the Medium and Long-term Strategic Skills List (MLTSSL). 

To add to the burden, the complexity of subclass 485 visa lies in the fact that there are six “Schedule 1” requirements (or time of application criteria):