Australian Immigration Daily News

Supposedly, thousands of visa decisions have been brought into question by a High Court ruling that found the government is responsible for, and cannot defer the making of, intervention decisions for denied visa applicants the request of the minister for immigration to review their decisions.

On Wednesday, 12 April, a majority of the High Court of Australia ruled in favour of two appellants in the appeal of Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Ors; DCM20 v Secretary of Department of Home Affairs & Anor.

The Migration Amendment (Subclass 309 Applicant Review Rights) Regulations 2023 (the Regulations) amends the Migration Regulations 1994 (the Migration Regulations) to provide that the prescribed person eligible to seek merits review of a decision to refuse a Subclass 309 Partner (Provisional) visa application where the visa could be granted in Australia is the applicant rather than the sponsor.

The partner visa program permits Australian citizens, permanent residents or eligible New Zealand citizens to sponsor their partners to live in Australia. Applicants for a Subclass 309 (Partner (Provisional) visa must usually be outside Australia to apply for and be granted the visa. If the application is refused, the applicant’s sponsor has standing to seek merits review of the refusal decision by the Administrative Review Tribunal (AAT). Where persons are already in Australia on another visa and become the spouse or de-facto partner of an Australian partner sponsor, they may apply for and be granted a Subclass 820 Partner (Temporary) visa in Australia. Where Subclass 820 visa applications are refused, the applicants, themselves, have standing to seek merits review.

Under the Migration Amendment (2021 Measures No.1) Regulations 2021, COVID-19 concession provisions were inserted into the Migration Regulations to allow for the grant of a Subclass 309 visa in Australia, if the applicant was in Australia during the COVID-19 concession period to address that the visa applicant could not depart Australia during the travel restrictions. These regulations retained the position that standing to seek merits review of a refusal decision is held by the applicant’s sponsor, to align with the merits review rights of Subclass 309 applicants who were unaffected by COVID-19 concession provisions.

Source: Migration-Amendment-sc309-Review-Rights-Regulations-2023.pdf and Migration-Amendment-sc309-Review-Rights-Regulations-2023-explanatory-statement.pdf

The instrument repeals Migration Regulations 1994 — Evidentiary Requirements — IMMI 12/116 in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (the Acts Interpretation Act).

That subsection provides that a power to make a legislative instrument includes a power to amend or repeal that instrument in the same manner, and subject to the same conditions, as the power to make the instrument.

The Migration Regulations provide special provisions relating to family violence (Division 1.5 in Part 1 of the Migration Regulations), including when an application for a visa is taken to include a nonjudicially determined claim of family violence (see subregulation 1.23(9) of the Migration Regulations).

Subregulation 5.19A(1) of the Migration Regulations provides that, subject to subregulation 5.19(2), the Minister may, by legislative instrument, specify a security issued by an Australian Government State or Territory government authority as a security in which an investment is a designated investment for the purposes of a Part of Schedule 2 to the Migration Regulations.

Source: LIN23018.pdf and LIN23018-Explanatory-Statement.pdf

The instrument repeals Migration Regulations 1994 –Qualifications – IMMI 13/013 (F2013L00528) in accordance with subsection 33(3) of the Acts Interpretation Act 1901.

That subsection provides that a power to make a legislative instrument includes a power to amend or repeal that instrument in the same manner, and subject to the same conditions, as the power to make the instrument.

Source: LIN23023.pdf and LIN23023-Explanatory-Statement.pdf