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EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173
Full Court of the Federal Court of Australia
Yates, Griffiths & Moshinsky JJ
Migration law - delegate of Minister cancelled applicant's visa under s501(3A) Migration Act 1958 (Cth) (Migration Act) - applicant sought judicial review of delegate's refusal to revoke visa's cancellation - Minister submitted Administrative Appeals Tribunal lacked jurisdiction to conduct review on basis representations under s501CA(4) Migration Act were not received by 'correct deadline' - Tribunal found it lacked jurisdiction on basis representations 'had to be received by no later than' 28 days from date of applicant's receipt of 'second notification letter' - applicant sought relief - 'construction issue' - whether 'either or both' Minister for Immigration and Border Protection v EFX17 [2021] HCA 9 and Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196 applied to second notification letter - whether Stewart was "plainly wrong" - whether construction by Full Court of "made" in Stewart erroneous - whether "clear" or "patent" error - whether "merely a difference of view as to meaning" - whether departure from requirements in s501CA(3) Migration Act - whether Pt 9.2 and s501CA(3) Migration Act invalid under s116 Constitution on basis they prohibited applicant from exercising Christian religion - whether applicant was not an alien for purposes of Migration Act - validity of regs 2.55 and 2.52 Migration Regulations 1994 (Cth) - procedural fairness - whether applicant 'not duly served with' second notification letter - held: Stewart was not "plainly wrong" - Court applied Stewart to second notification letter - second notification letter invalid - further amended originating application upheld.
EPL20
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174
Full Court of the Federal Court of Australia
Yates, Griffiths & Moshinsky JJ
Migration law - delegate of Minister, under s501CA(4) Migration Act 1958 (Cth) (Migration Act), refused to revoke cancellation of appellant's visa - Administrative Appeals Tribunal affirmed delegate's decision - Katzmann J, of Federal Court of Australia, dismissed judicial review application - appellant contended cancellation of visa invalid, or that appellant was not served with 'valid cancellation notice' - whether notice's invitation informing appellant concerning period within which representations were required to be made 'was consonant with reg 2.52' Migration Regulations 1994 (Cth) (Regulations) - effect of decision in Minister for Immigration and Border Protection v EFX17 [2021] HCA 9 'considered in light of' Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196 - whether primary judge erroneously found reg 2.55 Regulations applied to notice of cancellation - whether appellant 'made representations' concerning revocation of cancellation decision in time prescribed by reg 2.52(2)(b) Regulations - held: Court applied Stewart to invitation in notice - invitation 'incorrectly fixed' time under reg 2.52(2)(b) Regulations - invitation not in accordance with 501CA(3) Migration Act - invitation was invalid - appeal allowed.
Sillars
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 166
Full Court of the Federal Court of Australia
McKerracher, Griffiths & Bromwich JJ
Migration law - delegate of Minister refused to revoke mandatory cancellation of appellant's visa under s501CA(4) Migration Act 1958 (Cth) - Administrative Appeals Tribunal affirmed delegate's decision - Kerr J, of Federal Court of Australia, dismissed judicial review application - whether to grant appellant leave to raise new appeal grounds - "no evidence" ground - challenge to fact-finding of Tribunal - whether Tribunal's decision 'illogical, irrational and/or legally unreasonable' - five 'strands' of claims alleging 'illogicality and unreasonableness' - held: leave granted to raise appeal ground challenging Tribunal's fact-finding - Minister for Immigration and Border Protection v MZZMX [2020] FCAFC 175 - held: appeal dismissed.
QYFM
AFD21 v Minister for Home Affairs [2021] FCAFC 167
Full Court of the Federal Court of Australia
Kenny, Kerr & Wheelahan JJ
Migration law - appellant's Class AH Subclass 101 Child (permanent) visa cancelled under s501(3A) Migration Act 1958 (Cth) (Migration Act) - Minister declined to revoke cancellation of visa under s501CA(4) Migration Act - Snaden J, of Federal Court of Australia, dismissed judicial review application - whether Minister, in determining whether there was "another reason" 'to revoke the cancellation decision', gave 'active intellectual consideration' to representations of appellant concerning risks to appellant's personal safety if he were returned to Burundi, including risk of being killed - whether non-refoulment obligations were raised 'as a mandatory consideration' by appellant's submissions - no dispute that if they were raised, Minister erred in dealing with them in manner amounting to jurisdictional error - held: Minister did not give active intellectual consideration to representations - non-refoulment obligations were raised - appeal allowed.
AFD21

Source: Benchmark

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The Australian Agriculture visa is being designed for primary industry sectors including horticulture, meat processing, dairy, wool, grains, fisheries (including aquaculture) and forestry.

The program will be operated by the Department of Foreign Affairs and Trade, leveraging their experience managing the successful Pacific Labour Scheme.

The Seasonal Worker Programme and Pacific Labour Scheme will remain the priority source of temporary migrant workers for Australia’s agriculture sector. The Australian Agriculture visa will address any labour gaps that cannot be filled by Australian and Pacific labour.

 Source: Australian-Ag-visa.pdf

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Purpose

4. The purpose of the instrument is to update the approved form, place and manner ('the arrangements') requirements for making an application for a Visitor (Class FA) visa (Class FA visa). The Subclass 600 (Visitor) visa (subclass 600) is the only subclass for the Class FA visa and has five streams: the Tourist stream, the Sponsored Family stream, the Business Visitor stream, the Approved Destination Status stream and the Frequent Traveller stream. The instrument specifies the arrangements for making a visa application for each stream.

5. Item 1236 of Schedule 1 to the Regulations prescribes the requirements that an applicant for a Class FA visa must meet to make a valid visa application. Some of these requirements need to be specified in a legislative instrument, relevantly:

- the approved form, place and manner for making an application in each stream, as specified in an instrument made under subregulation 2.07(5) of the Regulations (see subitems 1236(1), 1236(3), 1236(4), 1236(5), 1236(6) and 1236(6A));

- the travel agents that organise tours that applicants for the Approved Destination Status stream must be intending to travel to Australia as a member of (see item 3 of the table in subitem 1236(6) of Schedule 1);

- the place applicants for the Frequent Traveller stream must be located when they make a visa application (see paragraph 2(b) of the table in subitem 1236(6A) of Schedule 1 to the Regulations); and

- the kind of passport applicants for the Frequent Traveller stream must hold when they make a visa application (see item 3 of the table in subitem 1236(6A) of Schedule 1 to the Regulations).

6. The instrument provides that applications for all streams must be made using an internet form and as an internet application through ImmiAccount. This is part of the Department’s and the whole-ofgovernment strategic transition to online processes. An application through ImmiAccount for a visa in any stream must indicate what stream is being applied for. Applications for the Tourist, Sponsored Family, Business Visitor and Frequent Traveller streams will indicate which stream is being applied for within form 1419 (Internet) in ImmiAccount. Applications for the Approved Destination Status stream will indicate that stream is being applied for by using form 48G (Internet) in ImmiAccount.

7. As applications must identify what visa stream is being applied for when making an application through ImmiAccount, an application is taken only to be made for the stream they have identified. Similarly, for applications made outside of ImmiAccount applicants must use the specified form for the stream. An application will only be assessed against the criteria for the stream an applicant has indicated they have applied for through ImmiAccount or based on the non-internet form used.

8. The instrument provides alternative arrangements for making an application in the Tourist stream (outside Australia) and Business Visitor stream. An applicant who has received a written notice from the Department may make an application using a different form and manner. Applicants for Tourist stream (in Australia) are also able to make an application using a non-internet form outside of ImmiAccount.

9. The instrument removes differentiations in LIN 20/046 for how to make an application based on the passport an applicant holds for the Tourist, Sponsored Family and Business Visitor streams. This is because the arrangements have been streamlined and simplified.

10. The instrument also removes the arrangements in place under LIN 20/046 for former subclass 600 visa holders whose travel to Australia was affected by COVID-19. The arrangements were in place for former subclass 600 visa holders whose visas were cancelled due to COVID-19 and must have been made within 3 months of the visa cancellation. Given that timeframe has elapsed there are no former subclass 600 visa holders who would benefit from the arrangements.

Source: LIN21056.pdf and LIN21056-Explanatory-Statement.pdf

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The following email has been received from the Office of the MARA:

Please see the below information regarding an upcoming outage today that will impact the payment functionality within ImmiAccount. 

ImmiAccount payment functionality unavailable:

...
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The following email was received from the South Australian government today.

To manage South Australia’s COVID recovery response, an additional 70 occupations will be open to applicants currently residing offshore from Tuesday 28 September 2021.

The minimum requirements for state nomination include at least 8 years work experience in the occupation or closely related occupation and a proficient plus English level. Full requirements for each occupation will be shown on South Australia’s Skilled Occupation List from 10am, ACST, Tuesday 28 September 2021.

For South Australian state nomination, prospective applicants must meet the Department of Home Affairs requirements, state-specific occupation requirements and have skills in an occupation that is available on our Skilled Occupation List. Offshore applicants meeting the minimum published requirements can lodge a Registration of Interest (RoI) from 10am, ACST, Tuesday 28 September 2021.

Full details of South Australia’s state nomination requirements can be viewed here.

Please note that state nomination is a competitive process.  There is no guarantee of receiving an invitation to apply for state nomination after lodging an RoI, even if the minimum requirements are satisfied. South Australia cannot indicate the likelihood of invitation or answer enquiries on this matter.

Thank you for your continued interest in South Australia’s Skilled Migration Program and please ensure you are subscribed to the NEWS section of our website to keep up to date with new announcements.

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