Australian Immigration Daily News

On 8 November 2023, the High Court answered questions of law reserved for its consideration in a special case to the effect that ss 189(1) and 196(1) of the Migration Act 1958 (Cth) ("the Act"), on their proper construction, authorised the plaintiff's detention as at 30 May 2023 and 8 November 2023, but the sections are beyond the legislative power of the Commonwealth Parliament insofar as they applied to the plaintiff as at those dates.

The order was announced as having been agreed to by "at least a majority" of the Court. Today, the High Court published its unanimous reasons for that order.

Source: NZYQ-v-Minister-for-immigration----Judgement-Summary-28-Nov-2023.pdf

Overview of the bill

The bill amends the Migration Act 1958 to improve Australia’s compliance with human rights obligations related to its immigration detention regime.

Australia’s immigration detention regime requires that any non-citizen who is in the country without a valid visa must be detained and may only be released from detention if they are granted a visa or removed from the country. This bill does two things. Firstly, it will introduce a 90-day limit on immigration detention, which can only be extended if the Minister decides that, having regard to principles of international law, an extended period of detention is necessary as a last resort, reasonable, and proportionate. This bill provides that any extension of detention by the Minister is reviewable by the Administrative Appeals Tribunal (AAT).

Secondly, this bill includes a prohibition of the detention of minors, in accordance with human rights obligations.

Source:

Migration-Amendment-Limits-on-Immigration-Detention-Bill-2023.pdf and 

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