Migration Amendment (Transitioning TPV/SHEV Holders to Resolution of Status Visas) Regulations 2023, dated 9 February 2023 amend the Migration Regulations 1994 to amend criteria for making a valid application for the Subclass 851 Resolution of Status visa (RoS) by certain persons who hold or have held a Subclass 785 (Temporary Protection) visa TPV or a 790 (Safe Haven Enterprise) visa SHEV, as well as certain children born in Australia to those persons. The instrument facilitates the transition to permanent residence of persons who arrived in Australia before the commencement date (TPV/SHEV transition day) and who applied for or obtained temporary protection in Australia through a Subclass 785 (Temporary Protection) visa or a Subclass 790 (Safe Haven Enterprise) visa. The instrument makes the following amendments: Item 1 This item inserts the definition of TPV/SHEV transition day in regulation 1.03 of the Migration Regulations as the day that Schedule 1 to the Migration Amendment (Transitioning TPV/SHEV Holders to Resolution of Status Visas) Regulations 2023 commences (14 February 2023). Item 2 It inserts regulation 2.08G which convert certain applications for Subclass 785 visas (TPV) and Subclass 790 visas (SHEV) into applications for a permanent visa, Subclass 851 (Resolution of Status) visa. The cohort of people for whom the visas are converted and the time when the visas are converted are mentioned in the table within the instrument: It includes the applications by applicants who hold a TPV or a SHEV on the TPV/SHEV transition day (14 February 2023) and who have made a further application for a TPV or SHEV which is pending before Minister on the TPV/SHEV transition day. It includes the applications by applicants who hold a TPV or a SHEV on the TPV/SHEV transition day (14 February 2023) and who have made a further application for a TPV or SHEV which had been refused by the Minister before the TPV/SHEV transition day. In this case, the application is only converted to a RoS application if the applicant is successful in a challenge to the refusal decision at merits review or judicial review and the application is remitted to the Minister after the order of the tribunal or court on or after the TPV/SHEV transition day. It deals with the applicant who does not hold or have held TPV or SHEV which means they are first time applicants for the TPV or SHEV, in cases where the Minister has not made a decision on the application before the TPV/SHEV transition day (14 February 2023). The applications will be converted to RoS applications if the Minister makes a record that the applicant satisfies the criteria for the grant of the Subclass 785 (Temporary Protection) visa; or Subclass 790 (Safe Haven Enterprise) visa. It covers the applications by applicants who are first time applicants for the TPV or SHEV, in cases where the Minister decided to refuse to grant the visa before the TPV/SHEV transition day. In this case, the application is only converted to a RoS application if the applicant is successful in a challenge to the refusal decision at merits review or judicial review and the application is remitted to the Minister after the order of the tribunal or court on or after the TPV/SHEV transition day and the Minister makes a record that the applicant satisfies the criteria for the grant of the Subclass 785 (Temporary Protection) visa; or Subclass 790 (Safe Haven Enterprise) visa. Item 3 This item amends the application validity requirement for the RoS visa as set out in item 1127AA of Schedule 1 to the Migration Regulations, imposed pursuant to section 46 (authorising criteria and requirements to make a valid application for a visa) of the Migration Act. The following applicants can make an application for the RoS visa: It covers the applicants who hold a TPV or a SHEV and first entered Australia before the TPV/SHEV transition day (14 February 2023) and the applicant has not made another valid application for a TPV or a SHEV that has not been finally determined. It deals with applicants who did not hold a TPV or SHEV on the TPV/SHEV transition day (14 February 2023) and at any time before the TPV/SHEV transition day, the applicant held a TPV or SHEV and the TPV or SHEV most recently held by the applicant was not cancelled and no subsequent application for a TPV or SHEV has been refused and finally determined. It covers applicants who are children born in Australia to persons covered by table items 4 and 5 provided that at the time of application for a RoS visa, the applicant has not made a valid application for a TPV or a SHEV that has not been finally determined. It deals with applicants who are children born in Australia to persons who hold RoS visas granted on the basis of an application taken to have been made under new regulation 2.08G, provided that at the time of application for a RoS visa, the applicant has not made a valid application for a TPV or a SHEV that has not been finally determined. The VAC for all these applicants is nil. Items 5 and 7 Items 5 & 7 inserts new paragraphs 1403(3)(ba) and 1404(3)(ba) in Schedule 1 to the Migration Regulations which specifies that a valid application for a TPV or SHEV can only be made by a person who first entered Australia on or after the TPV/SHEV transition day, or who entered before that day and, as at the TPV/SHEV transition day, had not made a TPV or SHEV application, or had made an application that had been finally determined and was not subject to any ongoing judicial review. This amendment is consistent with the policy of transitioning all eligible persons to permanent residence via the RoS visa if they arrived before the TPV/SHEV transition day. Item 9 & 11 Item 9 & 11 insert references to a RoS visa having been granted to a member of the same family unit as the applicant. Items 10
Migration Amendment (Aggregate Sentences) ACT 2023 amends the Migration Act 1958 to establish a consistent approach across the provisions of the Migration Act, as well as the Migration Regulations 1994 (the Regulations), in relation to sentencing for offences and to clarify that a person who is sentenced to a term of imprisonment of 12 months or more does not pass the character test on the basis of having a substantial criminal record within the meaning given by subsection 501(7) of the Migration Act, whether in relation to a sentence imposed by a court in respect of a single offence or an aggregate sentence. The amendment in the Act makes it clear that the provisions of the Migration Act and Regulations are not intended to differentiate between a criminal sentence imposed in respect of single offence, or a criminal sentence imposed in respect of two or more offences. The amendments respond to the decision of the Full Court of the Federal Court of Australia (the Federal Court) in Pearson v Minister for Home Affairs [2022] FCAFC 203 (Pearson). In Pearson, the Federal Court held that an aggregate sentence (a single sentence for more than one offence) imposing a term of imprisonment does not constitute a ‘substantial criminal record’ within the meaning given by subsection 501(7) of the Migration Act. The Court concluded that an aggregate sentence is not a sentence of imprisonment for the purposes of the definition of substantial criminal record in subsection 501(7) the Act, construing that definition as requiring the sentence to have been imposed in respect of a single offence. The amendment in the Act clarifies that the provisions of the Migration Act and Regulations apply in relation to a single sentence imposed by a court in the same way, regardless of whether the sentence is in respect of a single offence or for two or more offences. It also ensures that a person does not pass the character test if they receive a sentence resulting in a term of imprisonment of 12 months or more for one or more offences (for example, supplying a prohibited drug, knowingly dealing with the proceeds of crime and knowingly participating in a criminal group) or one or more serious offences (for example, murder and causing grievous bodily harm). If the amendments were not made, and the reasoning in Pearson was followed, such offenders would not have a substantial criminal record as a consequence of an aggregate sentence for the purposes of the Migration Act. The Act also includes provisions to validate past decisions and actions under the Migration Act and certain other specified law which would otherwise been deemed invalid as a consequence of the Federal Court’s decision in Pearson. Where this results in the person no longer holding a visa, and when the non-citizen has finished serving their criminal sentence, the Government will be able to return these non-citizens to immigration detention in order to progress their removal from the country and uphold community safety. The amendment also provides for opportunities for a person to appeal or seek review of a validated decision after commencement of the Act, in certain circumstances. It is registered on the Federal Register of Legislation on 16 February 2023 and received Royal Assent on the same date. It commenced on 17 February 2023. To know more, click here.
Migration (Visa Pre-application Process) Charge Bill 2023 (the Charge Bill) imposes different charges (which may be nil) for different ballots, and for different classes of people, prescribed by Regulations, who register as a participant in a ballot. The Charge Bill allows regulations to be made prescribing the amount of charge with the ability to prescribe different amounts for different ballots, and for different classes of persons. Importantly, the Charge Bill establishes a ceiling for the maximum amount of charge ($100) that may be prescribed under the regulations for a particular ballot. The Charge Bill also provides a mechanism for indexing this ceiling in accordance with annual movements in the Consumer Price Index. Regulations prescribing a charge would be disallowable by the Parliament. However, the amount prescribed in regulations for a particular ballot may be nil The Charge Bill is necessary because there is a possibility that the proposed charges may amount to a tax rather than a fee for service. Therefore, it is rational to legislate the charge on the basis that it is, or may be, a tax because it is not possible to determine the relationship between the amount of the charge and the cost of conducting the ballot. A small charge for participation in a ballot is likely to be necessary in most ballots to ensure that those who register are genuine and have given serious consideration to their capacity to take up a relevant visa, should they be successful in being selected in the ballot. Without this small charge, ballots may become bloated with participants who do not follow through by applying for the relevant visa. This will result in an inefficient process that may not deliver the annual program target for grants of the relevant visa. To follow the progress of the Bill, click here.
The Migration Amendment (Australia’s Engagement in the Pacific and Other Measures) Bill 2023 amends the Migration Act 1958 (the Migration Act) to allow the Minister to implement a visa pre-application process, involving random selection of eligible persons who will then be permitted to apply for a relevant visa to support the Government’s policy objectives in relation to engagement with Pacific nations. In order to build a strong and engaged Pacific diaspora in Australia, the Government has committed to the creation of a new class of visa, to be called the Pacific Engagement Visa (PEV), to provide access to permanent residence in Australia for an annual quota of citizens of certain Pacific countries and Timor-Leste. In order to establish this framework, the Bill: Persons who are successful in the ballot for the PEV will be notified that they may apply for the visa, which, if granted, will permit permanent residence in Australia. Partners and dependent children of the selected person may be included in the visa application. To follow the progress of the bill, click here.
On 13 February 2023, the Department has confirmed that the Temporary Skill Shortage (TSS) subclass 482 visa holders with occupations on the ROL are able to apply for permanent residence through the Temporary Residence Transition (TRT) stream of the Employer Nomination Scheme (ENS) subclass 186 visa. The Department confirmed that in addition to the subclass 482 visa holders who have been in Australia for at least one year between 1 February 2020 and 14 December 2021 and at the time of application are lawfully employed, subclass 482 visa holders with occupations on the ROL can also access the permanent residency pathway that is available under LIN 22/038 which allows sc 482 STSOL visa holders to apply for a subclass 186 TRT. However, such applicants must also meet all other nomination and visa requirements for the TRT stream of the ENS visa. The purpose of this change is to improve access to permanent residence for skilled migrant workers who chose to stay in Australia during the pandemic by providing permanent residence pathway for Temporary Skill Shortage (TSS) subclass 482 visa holders with an occupation on the Regional Occupation List. The Department made clear that those holding a Temporary Skill Shortage (TSS) subclass 482 visa with an occupation on the ROL and who worked in Australia during the pandemic are able to access the Employer Nomination Scheme (ENS) subclass 186 visa in the TRT stream with the concessions under LIN 22/038. The Department has further confirmed that this pathway is available now and there are no legislative changes required to give effect to this. This pathway is currently available for two years from 1 July 2022 and further decision regarding the continuation or discontinuation of this pathway will be taken by Government on 1 July 2024.
Migration Amendment (Evacuation to Safety) Bill 2023 will provide an offer of transfer to Australia from the Minister to all persons in the offshore cohort in Papua New Guinea or the Republic of Nauru at the commencement of this Act, who have not had an adverse security assessment made against them by the Australian Security Intelligence Organisation. The Bill will compel the Government to offer transfer to Australia to all persons subject to offshore processing still in PNG or Nauru who are not subject to an adverse security assessment by the Australian Security Intelligence Organisation (ASIO). The offer to be transferred to Australia will be made in writing, by the Minister, within one month of commencement of the Act, to all eligible person who are within the offshore cohort remaining in PNG or Nauru, except for those subject to an adverse security assessment by the Australian Security Intelligence Organisation (ASIO). If a person accepts an offer made, an officer must, as soon as practicable, bring the person to Australia and such persons will automatically be placed into community detention. Also, person receiving the offer under the provisions of this Bill can reject the offer or if the person accepts the offer, is free to withdraw their acceptance of the offer at any time prior to being transferred to Australia. In addition, this Bill will place all transferred persons into community detention and make any medical assessment and treatment they require available to them, while that person pursues a durable solution for their displacement with a third-country that is a state party to the United Nations’ 1951 Convention Relating to the Status of Refugees or the 1967 Protocol relating to the Status of Refugees. The Bill is registered on the Federal Register of Legislations on 8 February 2023 and will commence after this Act receives the Royal Assent. To access the instrument, click here.
Migration (Regional Processing Country—Republic of Nauru) Designation (LIN 23/017) 2023, dated 5 February 2023 designates the Republic of Nauru as a regional processing country to enable the operation of section 198AD of the Migration Act in relation to the Republic of Nauru as it is in the national interest. The instrument enables the operation of section 198AD of the Migration Act in relation to the Republic of Nauru. Subsection 198AD(1) provides that, subject to sections 198AE, 198AF and 198AG, an officer must take an unauthorised maritime arrival to whom section 198AD applies from Australia to a regional processing country. The only condition for the exercise of the power under subsection 198AB(1) is that the Minister thinks that it is in the national interest to designate the country as a regional processing country. Paragraph 198AB(3)(a) of the Migration Act provides that in considering the national interest, the Minister must have regard to whether or not the country has given Australia any assurances to the effect that the country will not expel or return a person taken to the country under subsection 198AD of the Migration Act to another country where the person’s life or freedom would be threatened on account of the person’s race, religion, nationality, membership of a particular social group, or political opinion and that the country will make an assessment, or permit an assessment to be made, of whether or not a person taken to the country is covered by the definition of refugee in Article 1A of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees. The instrument is registered on the Federal Register of Legislation and commenced on 7 February 2023. It is currently in force. To access the instrument, click here.
Migration (Refund of Second Instalment of Visa Application Charge) Instrument (LIN 23/022) 2023, dated 2 February 2023 specifies the visa classes for which a second VAC instalment can be refunded under Reg 2.12H. Subregulation 2.12H(1) of the Regulations provides that the Minister must refund the amount paid by way of the second instalment of the visa application charge (VAC) in relation to an application for a visa if any of the circumstances mentioned in subregulation 2.12H(2) exists and the Minister has received a written request for a refund. The instrument ensures ongoing access to VAC refunds for applicants who made applications for the visas listed in the Schedule to the instrument and to whom an event mentioned in paragraph 2.12H(2)(f) applies. The circumstance set out by paragraph 2.12H(2)(f) is that the amount was paid under a provision of Schedule 1 to the Regulations specified in an instrument in writing and, within the period of 12 months starting on the applicant’s visa commencement day (within the meaning of the Immigration (Education) Act 1971). The visa classes for which a second VAC instalment can be refunded under Reg 2.12H are: The instrument is registered on the Federal Register of Legislation on 2 February 2023 and commenced on 2 October 2022. It is currently in force. (The prior instrument made under this provision (Refund of Second Instalment of Visa Application Charge (IMMI 12/033) F2012L01306) was repealed by sunsetting on 2 October 2022. To cover the period from 1 October 2022, the instrument is to be taken to have commenced retrospectively on 2 October 2022.) To access the instrument, click here.
Migration (Designated APEC Economy) Instrument (LIN 23/008) 2023, dated 30 January 2023, defines “designated APEC economy” in regulation 1.03 of the Migration Regulations 1994, as including each economy mentioned in Schedule 1 as a designated APEC economy. A person who is the holder of a valid passport issued by a designated APEC economy, and who has applied to the Government of the designated APEC economy for an APEC Business Travel Card (ABTC) is taken to have made a valid application for a Subclass 600 (Visitor) visa in the Business Visitor stream by operation of regulation 2.07AA of the Migration Regulations. The ABTC scheme provides accredited business people streamlined entry to participating economies. The instrument commences retrospectively on 2 October 2022. This means that where a designated APEC economy passport holder has applied to the designated APEC economy for an ABTC on or after that date, the person will be taken to have made a valid application for a Subclass 600 (Visitor) visa in the Business Visitor stream. The Instrument will maintain the arrangements previously in place under Migration Regulations 1994 – Specification of Designated APEC Economies – IMMI 12/078 which was repealed by sunsetting on 1 October 2022. Schedule 1 specifies the following 19 APEC economies as Designated APEC Economies: The instrument is registered on the Federal Register of Legislation on 1 February 2023 and commenced on 2 October 2022. It is currently in force. To know more, click here.
Ministerial Direction No 99 revokes Direction 90 given under section 499 of the Migration Act 1958 (the Act) which commenced on 15 April 2021 regarding visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA. Decision-makers take into account the primary and other considerations relevant to the individual case while deciding whether to refuse or cancel a non-citizen ’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. Primary considerations are generally given greater weight than the other considerations. Under this new Direction 99, the strength, nature and duration of ties to Australia has been added as a primary consideration under Part 2 Section 8, with the effect that these considerations should generally be given more weight by decision-makers. Under Direction 90 these factors were covered under ‘other considerations’ and were not given much weightage by decision makers while deciding an application. According to new Ministerial Direction 99, the following are regarded as primary considerations in making a decision under section 501(1), 501(2) or 501CA(4) The principles under Subsection 5.2 have also been amended with the following paragraph added under 5.2(5): With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years. The new Ministerial Direction No 99 will commence on 3 March 2023.