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Issue 5
December 2023

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Welcome to our monthly newsletter on Australian migration!
First, apologies for the delay in getting out the newsletter. Like everyone else, we have been busy getting up to speed on the 25 November changes and answering the avalanche of queries that have followed. No sooner was this done, that the Department released their Migration Strategy just as we tried to clear our desks before the holidays. Anyway, we would like to wish everyone a safe and lovely holiday season, a merry Christmas and a happy New Year. It has been quite a month and we hope you all get some well deserved rest!      
 
If you have suggestions, comments, or something you would like to contribute to our newsletter, please feel free to email them through to us: ashish@migrationlawfirm.com.au.
All the best,
Ashish Sethi
Principal Solicitor at Migration Law Firm

NEWS
 


  • Labor to ‘make tough laws tougher’ on security  
Ministers Clare O’Neil of Home Affairs and Andrew Giles of Immigration have introduced a second set of laws aimed at limiting the activities of the 138 non-citizens of questionable character recently released from indefinite detention. Additionally, they have disclosed plans to enact legislation this week in reaction to a separate High Court ruling. This ruling revoked the authority of the home affairs minister to revoke the Australian citizenship of dual citizens. Read here.

  • Life after Australian immigration detention: A stateless man’s POV
More than 140 people have been released into the community since the High Court ruled indefinite detention was unlawful. The stateless man goes by the name Khalil, is in his mid-30s, originally from the Middle East, describes the challenging transition to life outside after being in immigration detention. While adjusting to new surroundings, he emphasizes the significance of simple pleasures like observing nature and dining out, expressing a new sense of humanity. However, he criticizes the rhetoric of both Labor and Liberal politicians, condemning their broad categorization of individuals, regardless of the severity of their offenses. He says, “They have put everyone in the same basket whether you’re a murderer or rapist or someone with minor charges.” Read here.

  • Government grants hundreds of temporary visas to Palestinians
The Australian government has granted hundreds of temporary visas to Palestinians in the weeks since Israel began its bombing campaign of Gaza. The Department of Home Affairs has confirmed 860 visas have been approved for Palestinians with connections to Australia between October 7 to November 20. Read here.

  • Calls to cap international students ‘nonsensical’
Mounting pressure on the federal government to cap the number of international students would do little to counter the housing crisis or inflation, experts say, but could cause long-term damage to the education sector. Read here.

  • Foreign student crackdown could force hundreds of colleges to close
Up to 200 vocational colleges teaching foreign students could be forced to close by the Albanese government’s crackdown on student visas being used as a back door to secure jobs in Australia, a group of colleges has warned. Read here.

  • Proposed Legislation: Stripping Dual Citizenship from Terrorists as a National Security Measure
The proposed law aims to revoke the dual citizenship of individuals involved in terrorist activities, signaling a robust response to enhance national security. The summary suggests that terrorists may face significant consequences, including the loss of citizenship in a dual-nationality scenario. While specific details about the legislation and its scope are not provided, the emphasis is on the government’s commitment to taking stringent measures against those engaged in terrorist acts. Such legislation underscores a growing global trend wherein nations are strengthening their legal frameworks to address the evolving challenges of terrorism and protect their citizens from potential security threats. Read here

IMMIGRATION UPDATES

  • Migration Amendment (Limits on Immigration Detention) Bill 2023
Australia’s immigration detention policy mandates the detention of non-citizens lacking a valid visa. Release from detention is accepted only upon either obtaining a visa or being removed from the country. The Bill seeks to bring Australia’s immigration detention system in alignment with international law by mandating that an official must be convinced that detention is a last-resort measure, reasonable, and proportionate. It establishes an initial 90-day time limit, with the possibility for the Minister to extend detention under specific conditions, subject to independent review. This includes a prohibition of the detention of minors, in accordance with human rights obligations. Read here

  • Insight on Canberra Matrix invitation round.

Information on the most recent Canberra Matrix invitation round on 27 November 2023. The ACT has a fixed number of nomination places available each month. The highest ranked Matrix in each occupation were invited to apply for ACT nomination. The cut‑off for selection depended on the remaining monthly allocation of the date and time. As per the notification now there are about 7 invitations for the 190 nominations for 457/482 visa holders and about 01 invitation for the 491 nominations. For Critical Skill Occupation there are about 61 invitations for the 190 nominations and about 46 invitations for the 491 nominations. As for the overseas applicant there are about none. Read here


  • Bringing skilled workers for Territory businesses and community
 The Albanese Government is actively addressing acute skills shortages in the Northern Territory by announcing an extension to the current migration agreement with the NT Government. This extension will pertain to the Designated Area Migration Agreement (DAMA) and is set to benefit over 280 employers throughout the Territory.
 
The one year extension to the Designated Area Migration Agreement (DAMA) will cover up to 625 temporary skilled visas for new workers. Aim is to deliver higher wages for new workers and more expansive pathways for permanent residency for existing workers. In order to meet salary thresholds from 2024 onward, minimum wages under the agreement’s extension will also rise from around $48,000 to $55,000. Read here

  • Shaping the Future: Public Input Invited for Australia’s 2024–25 Permanent Migration Program
Australia’s 2024–25 Permanent Migration Program is a crucial initiative that seeks to align with economic, social, and demographic goals while prioritizing the nation’s long-term interests. The Department of Home Affairs is actively seeking public input to inform the planning of this program. They are particularly interested in perspectives on the ideal size and composition of the Migration Program, with a focus on social cohesion, economic prosperity, and fairness. The public is encouraged to address considerations such as the impact of migration on Australian communities, including access to essential services like health, education, housing, and infrastructure. To facilitate submissions, a discussion paper titled “Planning Australia’s 2024–25 Permanent Migration Program” has been provided. Stakeholders are invited to share their insights by uploading submissions via the Public Submissions Form by December 17, 2023. The Department emphasizes the inability to consider submissions related to individual cases but may share de-identified content with relevant parties for discussion and policy development. This inclusive approach reflects the government’s commitment to engaging with the public and stakeholders in shaping Australia’s migration policies. Read here

  • Rising Fees: AFP National Police Check Costs on the Upward Trend
Starting from November 1, 2023, there will be a price hike for the AFP National Police Check. The fee for a Name check and a company name check will be raised to $47, while the Name and Fingerprint check will see an increase to $104.

  • Invitation Round for Canberra Matrix will be held soon
Next Invitation Round for Canberra Matrix will be held before November 20, 2023. The ACT offers a fixed number of monthly nominations, with invitations extended to the highest-ranked Matrix applicants in each occupation. The cutoff for selection is determined by factors like monthly allocation, submission date, occupation demand, and cap. Higher-demand occupations receive higher-ranking invitations. To meet our annual allocation goals, the ACT is currently prioritizing 491 applicants for critical skills gaps, and we have temporarily limited invitations to this category. Read here

  • List of some important new Legislative Instruments 
  1. Migration (Ending the COVID-19 Concession Period) (LIN23/063) Specification 2023
  2. Migration Amendment (Expanding Access to Temporary Residence Transition Stream) Regulations 2023
  3. Migration Amendment (Location Requirements for Grant of Visa) Regulations 2023
  4. Migration (LIN 19/216: Exemptions from Skill, Age and English Language Requirements for Subclass 186, 187 and 494 Visas) Instrument 2019
  5. Migration (LIN 19/049: Specification of Occupations and Assessing Authorities – Subclass 186 Visa) Instrument 2019

RECENT DECISIONS

  • High Court Rules Indefinite Immigration Detention Unlawful

Constitutional law (Cth) – Judicial power of Commonwealth – Immigration detention – Indefinite detention without judicial order – Where plaintiff stateless Rohingya Muslim having well-founded fear of persecution in Myanmar – Where plaintiff’s bridging visa cancelled following criminal conviction – Where following release from criminal custody plaintiff taken into immigration detention under s 189 of Migration Act 1958 (Cth) (“Act”) – Where plaintiff’s application for protection visa refused and finally determined – Where ss 198(1) and 198(6) of Act imposed duty upon officers of Department administering Act to remove plaintiff from Australia as soon as reasonably practicable – Where s 196(1) of Act required plaintiff to be kept in immigration detention until removed from Australia, deported, or granted visa – Where attempts by Department to remove plaintiff from Australia unsuccessful as at date of hearing – Where no real prospect of removal of plaintiff from Australia becoming practicable in reasonably foreseeable future – Where plaintiff sought writ of habeas corpus requiring release from detention forthwith – Whether application for leave to reopen constitutional holding in Al-Kateb v Godwin (2004) 219 CLR 562 should be granted – Whether constitutional holding in Al-Kateb should be overruled – Whether detention of plaintiff punitive contrary to Ch III of Constitution – Whether separation of plaintiff from Australian community pending removal constitutes legitimate and non-punitive purpose – Whether detention of plaintiff reasonably capable of being seen as necessary for legitimate and non-punitive purpose. 

 Immigration – Unlawful non-citizens – Detention pending removal from Australia – Where no real prospect of removal of plaintiff from Australia becoming practicable in reasonably foreseeable future – Whether detention of plaintiff authorised by ss 189(1) and 196(1) of Act – Whether application for leave to reopen statutory construction holding in Al-Kateb should be granted.

 Read the decision: NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs

  • High Court rules against revocation of Australian citizenship for citizens involved in terrorist activity. 
Constitutional law (Cth) – Judicial power of Commonwealth – Cessation of Australian citizenship – Where s 36D of Australian Citizenship Act 2007 (Cth) (“Act”) provided Minister for Home Affairs may make determination that person ceases to be Australian citizen if, among other matters, person has been convicted of offence against provision of Pt 5.3 of Criminal Code (Cth) (terrorism) and sentenced to period of imprisonment of at least 3 years in respect of conviction, and Minister satisfied conduct demonstrates repudiation of allegiance to Australia – Where s 36B of Act held in Alexander v Minister for Home Affairs (2022) 96 ALJR 560; 401 ALR 438 to be contrary to Ch III of Constitution for conferring upon Minister exclusively judicial function of adjudging and punishing criminal guilt – Where applicant citizen of Algeria and Australia – Where applicant convicted of and sentenced to term of imprisonment exceeding 3 years for offences against provisions of Pt 5.3 of Criminal Code – Where Minister determined pursuant to s 36D of Act that applicant cease to be Australian citizen – Where accepted, on authority of Alexander, that s 36D of Act properly characterised as punitive – Whether s 36D, like s 36B, contrary to Ch III of Constitution for conferring upon Minister exclusively judicial function of punishing criminal guilt – Whether Ch III prohibits reposing in Commonwealth Executive power to punish criminal guilt where court has adjudged criminal guilt – Whether prohibition subject to exception for involuntary deprivation of citizenship as punishment following conviction.

Read the decision: Benbrika v Minister for Home Affairs [2023] HCA 33

  • Federal Court Upholds Decision on Visa Cancellation Appeal: Tribunal’s Independence Affirmed in Mental Health and Medication Assessment
MIGRATION – appeal from decision of the Federal Court of Australia – where appellant suffered from severe mental health condition – whether the Tribunal acted under dictation from a decision of an earlier Tribunal – whether Tribunal erred in finding that the appellant would not suffer harm and would not face significant impediments upon return to Vietnam – appeal dismissed 
 
Read the decision: BKX23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 184 (30 November 2023)

  • Court Rules Detention Unlawful, Opens Door to Release of Asylum Seeker, Questions Remain on Removal

MIGRATION – Application for writ of habeas corpus – where applicant Iranian national unwilling to return to country of nationality and unable to be removed to any other country – whether ss 189 and 196 of Migration Act 1958 (Cth) (Act) validity authorise detention of applicant – whether real prospect of removal of applicant from Australia becoming practicable in reasonably foreseeable future – consideration of relevance of applicant’s non-cooperation

MIGRATION – Where applicant refused protection visa – where departmental officer holding delegation prepared assessment document with findings that applicant at risk of persecution if returned to Iran – findings not included in final decision – whether assessment document a “protection finding” for purposes of s 197C of Act

MIGRATION – Consideration of meaning of requirement in s 198 to remove “as soon as reasonably practicable” – whether removal reasonably practicable where applicant at risk of suicide and self-harm

Read the decision: AZC20 v Secretary, Department of Home Affairs (No 2) [2023] FCA 1497 (30 November 2023)

  • A 5 year and 10 month period found to be too long to meet the requirements of citizenship under s12 

ADMINISTRATIVE LAW – Citizenship – appeal from declaration of primary judge of this Court – where primary judge declared that Australian-born child of foreign nationals had been an Australian citizen since his 10th birthday by reason of s 12(1)(b) of the Australian Citizenship Act 2007 (Cth) – where parents had resided in Australia for many years on a series of temporary visas and child travelled to India at the age of four months to be cared for by his grandparents while his mother was studying in Australia – where the child remained in India for five years and 10 months while his parents lived and worked in Australia – whether primary judge erred in holding that throughout the first 10 years of his life the child was “ordinarily resident” in Australia as defined by s 3 of Citizenship Act – no error by the primary judge – appeal dismissed 

Read the decision: Minister for Immigration, Citizenship and Multicultural Affairs v Sidhu by his litigation representative Kaur [2023] FCAFC 133 

  • Tribunal Orders Reconsideration of Visitor Visa Refusal for Compassionate Family Visit 
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – family visit – brother’s serious injury – financial circumstances – connections with home country – married woman with young children – decision under review remitted

Read decision here: MANDI (Migration) [2023] AATA 3950 (23 November 2023)
 

  • Inconsistent Death Certificates provided for the Australian Sponsor for his earlier Partner 

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – bogus document – inconsistent death certificates – compassionate or compelling circumstances affecting an Australian citizen – separation of family – mental and emotional health issues – decision under review affirmed.

Read the decision: Kuir (Migration) [2023] AATA 3594 (11 October 2023)

  • South African Woman of Dutch descent found have a well-founded feared of persecution if she returned to South Africa 

REFUGEE – Protection Visa –South Africa –religion – Christian – race – Afrikaner – white race – xenophobic violence – membership of the particular social group – a white female facing legislative discrimination – a woman or an elderly woman with little support in South Africa – effective protection measures are not available to the applicant – decision under review remitted

Read the decision: 1933315 (Refugee) [2023] AATA 3600 (7 August 2023)

  • Employment as accountant found closely related to nominated occupation of external auditor for GSM points test 

MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled – Independent) – points test – Australian work experience not in nominated skilled occupation or closely-related – employment as accountant and nominated occupation as external auditor – education, work experience and skills assessment – cash payments during trial period – current employment not included by oversight – spontaneous, detailed and credible oral evidence – occupations in same ANZSCO minor group – members of family unit – decision under review remitted

Read the decisionAnureet (Migration) [2023] AATA 3790 (24 October 2023)

  • Primary Applicants applying under the NZ Stream to satisfy date of lodgement requirement only  

MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled – Independent) – New Zealand Stream – visa application made before 10 December 2022 – new amendments apply – decision under review remitted 

Read the decisionSharma (Migration) [2023] AATA 3880 (16 November 2023)

 

LANDMARK DECISION ON MIGRATION

Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5; 236 FCR 303

Facts of the Case:

  • Mrs. Angkawijaya, aged 58, from Indonesia, applied for a Partner Visa based on a de facto relationship with Mr. Limberiou, aged 89.
  • The Partner Visa Application was refused by the Department under Section 5CB(1) and (2) of the Migration Act for failing to meet the requirements of a de facto relationship.
  • The decision was affirmed at the AAT, who expressed concerns about the relationship’s nature, emphasizing the absence of specific expressions of romantic love.
  • Judicial review of the Tribunal’s decision was sought in the Federal Circuit Court (FCCA).
  • The FCCA held that the Tribunal had erred in making romantic love a prerequisite for a committed de facto relationship.
  • The Minister appealed the decision of the FCCA to the Federal Court (FCAFC).
FCCA Decision Angkawijaya & Anor v Minister for Immigration & Anor [2015] FCCA 450:
The primary judge found that the Tribunal committed a jurisdictional error in its decision to refuse the partner visa.

Being, the Tribunal misconstrued and misapplied legislative provisions by incorrectly asserting that the presence of love and affection was fundamental, if not determinative, to establishing a genuine de facto relationship.

The Tribunal’s emphasis on love and affection was deemed an erroneous interpretation of the legislative requirements, particularly Section 5CB(1) and (2) of the Migration Act.

As per Section 5CB(1) and (2) for the existence of a De Facto relationship a couple:

  • Must have a mutual commitment to a shared life to the exclusion of all others; and
  • Must have a relationship that is genuine and continuing; and
  • Must live together, or  not live separately and apart on a permanent basis.
The Court emphasized the central issue is a mutual commitment to a shared life. The reasons for the commitment, whether ‘love’ was present or not, are immaterial.

The Minister’s Appeal to the Federal Court:
The Minister appealed the decision, contending that the primary judge erred in finding the Tribunal’s approach was based on the necessity of love and affection in a de facto relationship.

The Minister argued that the Tribunal’s consideration of the absence of love and affection in the specific case did not imply a general interpretation that love and affection were mandatory for a genuine de facto relationship.

The court affirmed that the Tribunal’s error was not a value judgment but a misconstruction of legislative provisions, specifically the requirement of love and affection for a de facto relationship.

The court emphasized the legislative scheme, clarifying that the decision-maker’s task was to evaluate all relevant circumstances under the prescribed criteria, including Section 5F, Section 5CB and Regulation 1.09A(2).

The Full Federal Court dismissed the Minister’s appeal, upholding the primary judge’s decision that the Tribunal’s approach was flawed due to its belief that love and affection were fundamental to establishing a genuine de facto relationship.

Consideration:
In light of this decision, it is crucial to acknowledge that the definition of a de facto relationship is legally outlined, and decision-makers must adhere to the stipulations set forth in the Regulations. While societal and cultural assumptions about relationships may be tempting, the decision-maker’s duty is to apply the law.

When examining a de facto relationship, as defined in law (Section 5CB(1) and (2)), a couple must meet the following criteria:

  1. Have a mutual commitment to a shared life to the exclusion of all others.
  2. Maintain a genuine and continuing relationship.
  3. Live together or not live separately and apart on a permanent basis.
Crucially, elements such as a sexual relationship or romantic love, often assumed in partner/spousal relationships, are not legal requirements.

Considering the factors outlined in Regulation 1.09A(2), decision-makers are obligated to assess:

  • Financial aspects of the relationship.
  • Nature of the household.
  • Social aspects of the relationship.
  • Nature of the persons’ commitment to each other.
In essence, as long as a couple demonstrates a genuine, exclusive, and continuing relationship, lives together or intends not to live “separately and apart” permanently, and exhibits shared financial responsibilities, a shared household, social recognition as a couple, and mutual commitment, they fulfill the 5CB(1) and (2) definition of a de facto partner. Consequently, they can be considered for the grant of a Partner Visa.

Read the decision: Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5; 236 FCR 303

Disclaimer
Information (or the lack of it) contained in past, present or future editions of the Migration Monthly Newsletter (the Newsletter) should not be relied on by anyone as immigration assistance or legal advice. Migration Law Firm expressly disclaim any liability, arising at law, in equity or otherwise, for any information published or not published in past, present or future editions of the Newsletter. If you seek immigration assistance or legal advice, you should consult with a Lawyer or a Registered Migration Agent. The copyright in the Newsletter belongs to Ashish Sethi and no part of the Newsletter is to be reproduced by any means without the written consent of Ashish Sethi.

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Bulletins

  • The Department of Home Affairs has provided an update on conditions attached to the 482-visa from 01 July 2024.The Department of Home Affairs has provided an update on conditions attached to the 482-visa from 01 July 2024.