Australian Immigration Daily News

Today the High Court dismissed an appeal from a judgment of the Full Court of the Federal Court of Australia concerning the validity of the decision of the Minister for Immigration and Border Protection under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the cancellation of the appellant's Class BB Subclass 155 Five Year Resident Return visa, which is not a protection visa.

Section 501(3A) of the Migration Act relevantly provides that the Minister must cancel a visa if satisfied that the person does not pass the character test because they have a substantial criminal record and the person is serving a sentence of imprisonment on a full-time basis. Section 501CA(4) provides that the Minister may revoke the decision to cancel a visa if two conditions are met.

The first is that the person makes representations in accordance with the invitation from the Minister (s 501CA(4)(a)). The second is that the Minister is satisfied that either the person passes the character test or there is another reason why the decision should be revoked (s 501CA(4)(b)).

The appellant was born in Vietnam and arrived in Australia on a humanitarian visa in 1990. The visa did not have as a criterion that the appellant was entitled to protection under the Convention relating to the Status of Refugees as modified by the Protocol relating to the Status of Refugees. In 1994, the appellant was granted a Class BB Subclass 155 Five Year Resident Return visa.

That visa was cancelled pursuant to s 501(3A). The appellant was sent a notice of the decision, a copy of the relevant ministerial direction and other enclosures including a revocation request form. The appellant filled out the revocation request form and sent it to the Department of Immigration and Border Protection. Subsequently, in a letter from the Department, the appellant was provided with particulars of information including an "International obligations and humanitarian concerns assessment" ("the Assessment") and invited to comment. The Assessment concluded that no non-refoulement obligations were owed with respect to the appellant. The appellant responded to the request for comment but not in relation to the Assessment.

The Minister declined to revoke the cancellation. The appellant's application for judicial review and appeal to the Full Court were unsuccessful. The appellant was granted special leave to appeal to the High Court on the ground that, when exercising the power under s 501CA(4), the Minister was obliged to, and failed to, consider whether non-refoulement obligations were owed to the appellant. A majority of the High Court held that the Minister was not required to consider whether Australia owed non-refoulement obligations to the appellant as "another reason" under s 501CA(4)(b)(ii). There was nothing in any of the material submitted by the appellant in support of his revocation request that indicated or suggested that he now held a subjective or well-founded fear of persecution in Vietnam.

Source: S2702019-v-MINISTER.pdf and S2702019-v-MINISTER-Appeal-dismissed-with-costs.pdf

Holding three days of hearings for inquiry into Working Holiday Maker program - Hearings mostly focused on Working Holiday Makers & agriculture sector

Committee Chair Mr Julian Leeser MP noted that the hearings so far have mostly focused on Working Holiday Makers and the agriculture sector, and the Committee will turn its focus to other important matters.

“In our inquiry so far, we have received much evidence on the impact of border closures and the departure of approximately 50,000 Working Holiday Makers on the agriculture industry,” Mr Leeser said.

“This week’s hearings will further explore the broader context of the Working Holiday Maker visa, as the Committee talks with representatives of the tourism industry, and organisations and individuals involved in protecting Working Holiday Makers from exploitation in the workplace.”

“Crucially, the Committee will also hear from some Working Holiday Makers themselves, about their experiences of the program,” Mr Leeser said.

Source: Working-Holiday-Makers-in-the-time-of-COVID-19.pdf

Migration Alliance has received the following email from the Office of the MARA:

Dear all 

The Migration Agent Activity Report January to June 2020 has been published on the OMARA website: https://www.mara.gov.au/news-and-publications/publications/migration-agent-activity-report/

The instrument operates to specify, in section 7, the COVID-19 pandemic as declared by the World Health Organization on 11 March 2020 (the COVID-19 pandemic), as an event for paragraph 408.229(b) of Schedule 2 to the Regulations. The instrument also operates to specify, in sections 8 and 9, the classes of persons for the purposes of paragraph 408.229(c) of Schedule 2 and subparagraph 1237(2)(a)(i) of Schedule 1 to the Regulations. Accordingly, the instrument operates so that a person who is in a specified class of persons is eligible to apply for a Subclass 408 visa in relation to the COVID-19 pandemic and with a nil visa application charge.

The purpose of the instrument is to adjust and expand the measure introduced by LIN 20/122 to respond to the COVID-19 pandemic, which has evolved since the measure was initially implemented.

Source: LIN20229.pdf and LIN20229-Explanatory-Statement.pdf

Building a strong migration advice profession is a tactical process, not a goal. As migration advisers, building on an already robust profession is the systematic process of consolidating the various groups within our migration profession around a specific goal. The specific goal of our profession is to protect, advance, promote, and preserve the Australian migration advice industry.

Part of the profession-building process for the migration advice profession is the guiding and propulsion of all groups into a place of closeness, mutual understanding, and trust, despite our differences. In essence, building the migration advice profession is like setting the “table” for a healthy marriage.

Forging respectful relationships and mutual respect of our professional associations, whether they be Registered Migration Agent (RMA) associations, Law Societies or a mix of lawyers and RMAs requires each of us to engage in the behaviours mentioned above. This will minimise the interpersonal obstacles and personal biases that can hinder overall productivity and growth as a migration advice profession.