Australian Immigration Daily News

Overview of the Bill

The Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023 (the Bill) amends the Migration Act 1958 (Migration Act) to complement amendments made by the Migration Amendment (Bridging Visa Conditions) Act 2023 (First Amendment Act) on 18 November 2023.

On 8 November 2023, the High Court declared, in the case of NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (NZYQ), that NZYQ’s detention was unlawful “by reason of having been and continuing to be no real prospect of removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future”. The High Court found that the relevant provisions are beyond the legislative power of the Commonwealth insofar as they applied to the plaintiff and issued a writ of habeas corpus.

The reasons for the judgment have not yet been published.

Following that decision, the Amendment Act was developed to manage the cohort of non- citizens affected by NZYQ. The NZYQ-affected cohort is made up of people who have been refused grant of a visa, or had their visa cancelled, and who are on a removal pathway but who have no real prospect of removal becoming practicable in the reasonably foreseeable future. In many cases, the person has a protection finding, within the meaning of section 197C of the Migration Act, which prevents their removal to their country of citizenship or habitual residence and there is currently no other country to which their removal can be effected. A ‘protection finding’ reflects the circumstances in which Australia has non- refoulement obligations with reference to a person. In other cases, removal is not practicable in the foreseeable future for other reasons, including where the person is stateless and their country of former habitual residence is not willing to accept their return.

Of the current known cohort, the majority were refused a visa, or had their visa cancelled, on character grounds. Others in the cohort had their visa cancelled on other grounds, but had not previously been granted a bridging visa due to risks they present to the Australian community.

Source: Migration-Amendment-Bridging-Visas-and-Other-Measures-Bill-2023.pdf and

Migration-Amendment-Bridging-Visas-and-Other-Measures-Bill-2023-EXPLANATORY-MEMORANDUM.pdf

The Migration Amendment (Subclass 200 and 201 Visas) Regulations 2023 (the amending Regulations) amend the Migration Regulations 1994 (the Migration Regulations) to allow for the power to certify an applicant for a Subclass 200 (Refugee) visa or a Subclass 201 (In-country Special Humanitarian) visa as being a member of a class of persons specified by the Minister and as being at risk of harm as a result of the person’s membership of that class to be delegated by ‘relevant Ministers’ to senior executive-level staff within certifying agencies (the Attorney- General’s Department (AGD), the Department of Foreign Affairs and Trade (DFAT), the Department of Defence and the Australian Federal Police (AFP)).

This is to achieve significant administrative efficiencies for these agencies, which will benefit affected applicants by reducing processing times.

Source: Migration-Amendment-sc200-and-201-visas-2023.pdf and

Subsection 504(1) of the Migration Act provides that the Governor-General may make regulations, not inconsistent with the Migration Act, prescribing matters required or permitted to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Migration Act.

In addition, section 40 of the Migration Act provides that the regulations may prescribe that visas may only be granted in specified circumstances and the circumstances may include that the person is either in Australia or outside Australia when the visa is granted. Subsection 31(3) provides that the regulations may prescribe criteria for visas.

Source: Migration-Amendment-Location-Requirements-for-Grant-of-Visa-Regulations-2023.pdf and

Overview of the Disallowable Legislative Instrument

The Migration Amendment (Expanding Access to Temporary Residence Transition Stream) Regulations 2023 (the Amendment Regulations) amend the Migration Regulations 1994 (the Migration Regulations) to expand access to the Temporary Residence Transition (TRT) stream of the Subclass 186 (Employer Nomination Scheme) visa (Subclass 186 visa). The changes also apply to the TRT stream of the Subclass 187 (Regional Sponsored Migration Scheme) visa (Subclass 187 visa).

The Subclass 186 visa and Subclass 187 visa are permanent visas that allow employers to nominate skilled overseas workers for permanent residence in Australia to fill genuine vacancies in their business. The Subclass 186 visa is available nationally, while the Subclass 187 is for skilled workers who want to work in regional Australia. Both programs consist of a TRT stream, with a Direct Entry stream and a Labour Agreement stream also available in the Subclass 186 visa.

The TRT stream of the Subclass 186 and Subclass 187 visas provides a permanent visa pathway to Subclass 482 (Temporary Skill Shortage) visa (Subclass 482 visa) and certain Subclass 457 (Temporary Work (Skilled)) visa (Subclass 457 visa) holders who have worked in Australia for a specified period with a sponsoring employer who wishes to sponsor them for permanent residence.

The Subclass 457 visa closed to new applications on 18 March 2018 and was replaced with the Subclass 482 visa.

The Subclass 482 visa enables employers to source skilled overseas workers to address labour shortages where an appropriately skilled Australian worker is unavailable. Overseas workers must be nominated by a sponsoring business and obtain a Subclass 482 visa before they can commence work in Australia. Subclass 482 visas have a Short-term stream (up to 2 years duration), a Medium-term stream (up to 4 years duration), and a Labour Agreement stream (up to a 4 year duration depending on the terms in the labour agreement).

Source: Migration-Amendment-Expanding-Access-to-TRTS-Regulations-2023.pdf and 

Migration-Amendment-Expanding-Access-to-TRTS-Regulations-2023-Explanatory-Statement.pdf

Purpose

Regulation 1.15N in Part 1 of the Regulations sets out the meaning of ‘concession period’ for the purposes of the Regulations. Regulation 1.15N was inserted in the Regulations on 19 September 2020 as part of Australia’s response to the COVID-19 Pandemic.

Regulation 1.15N makes provision for both an ‘initial concession period’, and also for later concession periods for the purposes of specified provisions of the Regulations. Subregulations 1.15N(1) and (2) provide for the initial concession period, which is a period that commenced on 1 February 2020 and which ends on a day specified by the Minister by legislative instrument under subregulation 1.15N(2).

The purpose of this instrument is to specify 25 November 2023, for the purposes of paragraph 1.15N(1)(b), as the day on which the concession period ends. In accordance with table item 4 in subsection 36(1) of the Acts Interpretation Act 1901, the concession period includes 25 November 2023, and ends at the end of that day.

On commencement of this instrument, any reference to a ‘concession period’ in the Migration Regulations is therefore a reference to a period commencing on 1 February 2020 and ending on 25 November 2023.

Regulation 1.15N was inserted by the Migration Amendment (COVID-19 Concessions) Regulations 2020 (the COVID-19 Concessions Regulations) on 19 September 2020. The COVID-19 Concessions Regulations amended the Migration Regulations to assist certain temporary and provisional visa holders, including individuals on a pathway to permanent residence, who were disadvantaged by the consequences of the COVID-19 Pandemic, such as border closures, restrictions imposed on businesses and the general economic downturn.

Source: LIN23063.pdf and LIN23063-explanatory-statement.pdf