Australian Immigration Daily News

Overview of the Disallowable Legislative Instrument

The Disallowable Legislative Instrument prescribes the period for the Administrative Appeals Tribunal (the Tribunal) to decide certain applications for merits review, consequential to the commencement of the Migration Amendment (Clarifying International Obligations for Removal) Act 2021.

Relevantly, the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 amended section 197C of the Migration Act 1958 (the Migration Act) to ensure that section 198 of the Migration Act does not require or authorise the removal of an unlawful non-citizen to a country in relation to which that unlawful non-citizen has been found to engage non-refoulement obligations through the protection visa process, by way of a ¡¥protection finding¡¦. However, the amended section 197C of the Migration Act does permit the removal powers to operate where:

- the decision in which the protection finding was made has been quashed or set aside;

- the Minister makes a decision under new subsection 197D(2) that the unlawful non-citizen is no longer a person in respect of whom a protection finding would be made and merits review of that decision is complete; or

- the non-citizen requests, in writing, to be removed to that country.

The Migration Amendment (Clarifying International Obligations for Removal) Act 2021 also amended the Migration Act to provide for merits review of the decision under new subsection 197D(2). Paragraph 411(1)(e) of the Migration Act provides that decisions under subsection 197D(2) are ¡¥Part 7-reviewable decisions¡¦ (as defined in the Migration Act), reviewable by the Tribunal. Subsection 419(1) of the Migration Act provides that if an application for review of a decision under subsection 197D(2) of the Migration Act is made to the Tribunal, the Tribunal must make its decision on review, and notify the applicant of the decision, within a prescribed period.

The purpose of this Disallowable Legislative Instrument is to amend the Migration Regulations 1994 (the Migration Regulations) to provide that the prescribed period for the Tribunal to make its decision in relation to review of a decision under subsection 197D(2) of the Migration Act ¡V and notify the applicant of that decision ¡V is 120 days. This period will start when the application for review is received by the Tribunal, and will end at the end of 120 days starting on the first working day after the day on which the Tribunal received the application. Should this time period prove insufficient, subparagraph 419(2) of the Migration Act enables the Tribunal, with the applicant’s consent, to extend this period to allow flexibility if the decision on review is particularly complex or other circumstances arise which may result in the Tribunal not meeting this timeframe.

Source: MA-Clarifiying-international-obligations-for-removal-Regulations-2021.pdf and

MA-Clarifying-international-obligations-for-removal-regulations-2021-explanatory-statement.pdf

The following email has been received from the Western Australian state government:

We would like to advise you that online application for 2021/22 Western Australian State Nomination is open from today 4^th August 2021 for the following visa categories: 

• 188A – Business Innovation
• 188B – Investor
• 188C – Significant Investor 

Please refer to our website for more information about the other categories. https://www.businessmigration.wa.gov.au/business-migration/provisional-business-visas 

The NSW government has published the following information:

Overview of the Disallowable Legislative Instrument

The Migration Amendment (Subclass 417 and 462 Visa) Regulations 2021 amends the Migration Regulations 1994 (the Regulations) to prevent work for certain employers being counted towards eligibility for a subsequent Working Holiday Maker visa (WHM visa).

The WHM program consists of two visa subclasses namely:

- the Work and Holiday (Subclass 462) visa; and.

- the Working Holiday (Subclass 417) visa

Both WHM visas are granted with a 12-month stay period. .

The key differences between the two visas are that the Work and Holiday (Subclass 462) visa arrangements generally have caps on the number of visas granted annually (except for the United States of America) and include additional eligibility requirements such as a minimum education level, English language proficiency or letters of support from a partner country Government. The Working Holiday (Subclass 417) visa arrangements are uncapped with no limit on the annual number of visa grants.

There are incentives for people who have been granted a WHM visa to work in locations and industries specified for this purposes by the Minister, referred to as 'specified work'. While people who have been granted a WHM visa can work in any area or industry, a person who has held their first WHM visa in Australia (having never been previously in Australia as a holder of a WHM visa) may then be granted a second visa if they have carried out at least three months of specified work. If a person undertakes at least six months of specified work whilst holding their second WHM visa, they are then eligible to be granted a third WHM visa.

There are variances of specified work based on subclasses:

- for the Working Holiday (Subclass 417) visa - construction, fishing and pearling, plant and animal cultivation, mining and tree farming and felling in regional Australia is considered specified work;

- for the Work and Holiday (Subclass 462) visa - construction and plant and animal cultivation in Northern and regional Australia, and fishing and pearling, tree farming and felling, and tourism and hospitality in Northern Australia is considered specified work; and

- for both WHM visas - bushfire recovery work in declared disaster areas and critical COVID-19 work in the healthcare and medical sectors anywhere in Australia is also specified work.

The main purpose of the WHM program is to build people-to-people and cultural links between Australia and partner countries. While people who have been granted a WHM visa can choose to supplement their holiday with short-term employment, employment is not the primary objective of the visa.

The message the Government wishes to reinforce with this amendment is that any exploitation of migrant workers is totally unacceptable and will not be tolerated.

Exploitation of any worker is unacceptable, and is recognised to have serious consequences, including adverse impacts on the worker¡¦s human rights. Any exploitation by an employer of a person who has been granted a WHM visa could be viewed as undermining the intention of the visa program (i.e. does not foster positive cultural links for a worker with Australia) and damages Australia¡¦s reputation as a safe and welcoming destination.

The new measure is intended to enhance protection for people who have been granted WHM visas by identifying employers who may pose a risk to the safety or welfare of a person, for example with reference to relevant convictions, and regulating that working for such employers will not count as specified work for the purposes of qualifying for a second or third Working Holiday (Subclass 417) or Work and Holiday (Subclass 462) visa. This measure would dissuade people who have been granted WHM visas from engaging in work for those employers The Department of Home Affairs (the Department) would implement enhanced communication channels to allow visa holders to easily check the status of their employer.

 Source: Migration-Amendment-Sc417-and-462-visas-Regs-2021.pdf and Migration-Amendment-Sc417-and-462-visas-Regs-2021-explanatory-statement.pdf

Overview of the Disallowable Legislative Instrument

The Migration Amendment (Temporary Sponsored Parent Visas) Regulations 2021 (the Disallowable Legislative Instrument) amends the Migration Regulations 1994 (the Migration Regulations).

The Subclass 870 (Sponsored Parent (Temporary)) visa enables parents sponsored by their adult Australian citizen, permanent resident or eligible New Zealand citizen children to travel to, enter and remain in Australia for up to three or five years at a time, and may be held for a maximum total cumulative period of up to 10 years. Subclass 870 visas commence at the time they are granted irrespective of where the applicant is located at that time.

The amendments made by this Disallowable Legislative Instrument automatically extend for 18 months, in addition to the period for which the visa was originally granted, Subclass 870 visas held by persons who are outside Australia on 1 July 2021 and have faced difficulties in using the visa to travel to Australia due to COVID-19 travel restrictions and the practical difficulties of travel at this time.

The amendments limit the adverse impact of COVID-19 related travel restrictions and practical difficulties on holders of Subclass 870 visas who may have been granted the visa while outside Australia and now may have difficulty in travelling to Australia, or who may have left Australia while holding the visa but may now have difficulty in returning. The amendments assist Subclass 870 visa holders who are outside Australia on 1 July 2021 by allowing them additional time to travel to and stay in Australia when travel resumes.

Source: Migration-Amendment-Temporary-Sponsored-Parent-visas-Regs-2021.pdf and Migration-Amendment-Temporary-Sponsored-Parent-visas-Regs-2021-Explanatory-Statement.pdf