ByLawyers News and Updates

Family violence visas – FED

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New eligibility criteria for visas under family violence provisions of the Migration Act commenced on 17 December 2024.

The provisions are intended to prevent secondary visa applicants from feeling compelled to remain in a violent relationship with the primary applicant for fear of an adverse visa outcome.

Violent behaviour can include physical abuse, sexual abuse, verbal or emotional abuse, social abuse, and financial abuse.

Eligibility for family violence visas

A secondary applicant must satisfy the primary criteria of being a member of a family unit at the time of being granted a visa.

A member of a family unit is a spouse or de facto partner, or a child or step-child of the primary visa applicant. A person over the age of 18 is deemed to be a child if they have not turned 23, and are dependent on the family head or the spouse or de facto partner of the family head. If they are over 23, they are still a member of the family unit if they are dependent due to a disability. A dependent grandchild or step-grandchild of the primary applicant is also a member of a family unit. 

Without the family violence provisions, a secondary visa applicant whose relationship with the primary visa applicant has broken down would no longer be a member of a family unit and would not satisfy the primary criteria to be granted a visa.

However, a secondary visa applicant who ceases to be a member of a family unit as a result of family violence perpetrated against them by the primary visa applicant can still apply for a visa under the family violence provisions. 

See the Types of domestic and family violence page of the Department of Home Affairs for further details. 

Evidence

A secondary visa applicant who claims family violence must provide evidence to the Department of Home Affairs about the primary applicant’s violent conduct towards them, and their prior relationship status. Evidence of family violence can include medical reports, police statements, court orders, convictions and a statutory declaration for a family violence claim.  See the Family violence provisions – Secondary applicants page of the Department of Home Affairs for further information. 

The family violence provisions have been expanded to include several new visa subclasses previously not covered:

  • Parent (Subclass 103);
  • Remaining Relative (Subclass 115);
  • Carer (Subclass 116);
  • Business Talent (Subclass 132);
  • Contributory Parent (Subclass 143);
  • Pacific Engagement (Subclass 192);
  • Aged Parent (Subclass 804);
  • Remaining Relative (Subclass 835);
  • Carer (Subclass 836);
  • Contributory Aged Parent (Subclass 864); and
  • Business Innovation and Investment (Subclass 888).

Publication updates

The By Lawyers Immigration publication has been updated to include the new visa types. 

Administrative Review Tribunal – FED

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The Administrative Review Tribunal (ART) commenced on 14 October 2024. It replaced the Administrative Appeals Tribunal (AAT) and the Immigration Assessment Authority (IAA) which are both abolished.

The new tribunal was set up with the stated objective of providing an independent mechanism for review that:

  • is fair and just;
  • ensures that applications to the tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the tribunal permits;
  • is accessible and responsive to the diverse needs of parties to proceedings;
  • improves the transparency and quality of government decision‑making; and
  • promotes public trust and confidence in the tribunal.

The ART consists of a President and a Deputy President, both of whom must be judges, as well as senior members and general members.

The tribunal’s governing legislation is the Administrative Review Tribunal Act 2024 (the Act) and the Administrative Review Tribunal Regulations 2024 (the Regulations).

Provisions of other legislation can apply in addition to or instead of the Act. The Migration Act 1958 contains several such provisions.

The Minister has rule-making power under the Act, and the President of the ART can make practice directions.

Publication updates – Immigration

The Administrative Review Tribunal deals with matters including reviewable migration decisions and reviewable protection decisions. The By Lawyers Immigration guide has been updated accordingly.

Changes concerning how reviews of visa decisions are dealt with include:

  • The divisions of the previous tribunal have been replaced with eight jurisdictional areas, one of which is migration. Lists within each jurisdictional area led by a Deputy President or Senior Member will focus expertise on particular types of applications.
  • The procedures of the tribunal are harmonised and contained in the Regulations, the Rules and Practice Directions.
  • Fast-track reviews under the provisions of Part 7AA of the Migration Act 1958 in relation to protection visa decisions, previously dealt with by the IAA, are no longer available and the provisions have been repealed.
  • Reviews under Parts 5 and 7 of the Migration Act 1958 are now heard by the Administrative Review Tribunal.
  • Appeals and reference of questions of law can be made from the ART to the Federal Court under Part 7 of the Act.
  • A guidance and appeals panel has been established consisting of senior tribunal members to review tribunal decisions if there is an issue of significance to administrative decision-making, or an error of fact or law materially affecting the tribunal’s decision.
  • The ART is subject to monitoring by the newly established Administrative Review Council with regard to the overall administration of justice, not individual decisions.

Commencement and transitional provisions

The new law applies to all new and existing cases from 14 October 2024. Proceedings commenced in the AAT of IAA under the old statutory regime will automatically be transferred to the ART and dealt with under the new law.

Proceedings for review of a reviewable protection decision previously fast-tracked by the IAA will be continued and finalised by the ART.

New forms will be created, but the old forms can continue to be used for review applications after 14 October 2024.

New visa – FED

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New visa

The Australian Government has introduced a new permanent residence visa, subclass 192, from 3 June 2024 which permits eligible nationals of participating Pacific Island countries and Timor-Leste to apply if they are first selected in a ballot.

The new visa is intended to deepen connections and improve mobility and migration opportunities within the Pacific region.  It gives priority to countries with limited permanent migration opportunities to Australia, or citizenship rights with New Zealand, France, and the United States.

Three thousand places are allocated for this visa annually.

To be eligible to apply for the visa, an applicant has to be randomly selected in a ballot. The ballots are intended to ensure a fair and transparent process and equal access to the new visa for persons of any skill level, occupation, and gender. A separate annual ballot is held for each country and registration through the Department of Home Affair’s ImmiAccount is required.

Eligibility requirements to take part in the ballot are:

  • aged between 18-45 years at the commencement of the ballot registration period for the particular country
  • hold a valid passport issued by one of the participating countries
  • be born in, or have a parent that was born in, any of the participating countries, or Australia, New Zealand, Samoa, or the Marshall Islands
  • not be a citizen of New Zealand
  • not already be registered in the same ballot
  • pay the registration fee of AUD25.

Registration for the ballot has to occur within the registration period when the ballot is open.

If an applicant is selected, they can submit their visa application within 120 calendar days.

To apply for the permanent visa, selected applicants have to be between 18 and 45 years old, have a formal job offer in Australia, and meet general visa requirements

More details can be found in the full commentary in the By Lawyers Immigration guide.

Visa subclasses – FED

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There have been changes to a number of visa subclasses. These changes create new conditions and affect the expiration dates and cancellation grounds across various visa subclasses.

The Migration Amendment (2022 Measures No. 2) Regulations 2022 introduce the following three migration law changes.

  1. Visa holders in the 482 temporary skill shortage visa subclass can apply for a further 482 visa without leaving Australia. Applicants must have been in Australia between 1 February 2020 and 14 December 2021, when international borders were shut. This only applies to 482 visas in the short-term stream. Applicants will be able to make a further 482 visa application onshore from 1 July 2022 to 1 July 2023.
  2. Holders of skilled graduate visa subclass 476 who were affected by the COVID-19 pandemic have now had their visas extended to 14 April 2024. The extension commenced retrospectively on 31 January 2022, and includes secondary visa holders.
  3. Tourists who hold an Electronic Travel Authority eligible passport can now apply for a tourist visa subclass 601 through the new Australian ETA digital app, in addition to the existing Electronic Travel Authority website.

The Migration Amendment (Protecting Australia’s Critical Technology) Regulations 2022 introduces concepts of public interest criterion in granting and cancelling visas. These changes impact student visa subclass 500, and a postgraduate research course will satisfy the public interest criterion. However, the Minister may cancel any visa class where there is an unreasonable risk of any unwanted transfer of critical technology by a visa holder.

The By Lawyers Immigration commentary for both LEAP and website subscribers has been updated with these amendments. The commentary summarises the new conditions and dates for each affected visa subclass neatly within existing coverage of those visa subclasses.

Immigration work – FED

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Immigration publication substantially enhanced

Practitioners doing immigration work will find the By Lawyers Immigration publication has been substantially reviewed and expanded. The new content includes significant new commentary on reviews, appeals and ministerial intervention.

Lawyers doing immigration work

Practitioners will be aware that barriers to lawyers doing immigration work were lifted from 22 March 2021. Amendments to the Migration Act 1958 (Cth) removed the requirement for lawyers with an unrestricted practising certificate to also be registered as migration agents before doing immigration work for their clients. See the previous By Lawyers Obiter post Lawyers doing immigration work for more information.

The resultant opportunity has seen By Lawyers Immigration publication expanded to assist practitioners acting for clients in immigration matters.

Review, appeals and ministerial intervention

The existing section of the By Lawyers Immigration publication has had new commentary and precedents added. This new content will assist practitioners acting for an applicant who seeks to review a decision concerning an existing visa or a visa application. The publication now covers all possible review options up to and including High Court appeals.

New commentary and precedents

Enhancements include the addition of the following precedents and the expansion of the related commentary to provide highly practical resources on the review and appeals process:

Administrative Appeals Tribunal

  • Letter to client with costs agreement explaining the tribunal process
  • Letter to client re invitation to provide information from tribunal
  • Letter instructing expert witness to prepare report and attend tribunal hearing
  • Statement of Issues, facts and contentions
  • Draft minutes for consent order – Administrative Appeals Tribunal
  • Letter to client – Application for review of tribunal decision successful
  • Letter to client advising of tribunal refusal and attaching decision

Immigration Assessment Authority

  • Letter to client – Application for review of authority decision successful
  • Letter to client advising of authority refusal and attaching decision
  • Example content – Statutory declaration by applicant – Submission accurately and completely presents claim

Judicial review

  • Letter to client with costs agreement explaining the court process
  • Brief to Counsel
  • Example content – Grounds for application for judicial review
  • Example content – Affidavit to accompany application for judicial review
  • Example content – Final orders sought by the applicant
  • Example content – Affidavit for filing or tendering evidence
  • Example content – Affidavit in support of application for extension of time to lodge application for judicial review
  • Letter to client after decision – Application granted
  • Letter to client after decision – Application refused

The enhancement of this publication assists practitioners to do immigration work for clients in all type of Migration Act matters.

Lawyers doing immigration work – FED

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Removal of dual registration requirement

Barriers to lawyers doing immigration work have finally been lifted. From 22 March 2021 amendments to the Migration Act 1958 (Cth) remove the requirement for lawyers to also be registered as migration agents before doing immigration work for their clients.

Amendments to the Migration Act

Australian legal practitioners who hold an unrestricted practising certificate, as defined in the Migration Act, can now conduct immigration matters as part of their usual practice, with no requirement to register as migration agents under the Act.

Amendments to the Act by the Migration Amendment (Regulation of Migration Agents) Act 2020 effectively define an ‘unrestricted’ Australian legal practitioner as one who has completed their compulsory period of supervised practice after first being admitted. Those who hold an ‘unrestricted’ practising certificate are permitted to give immigration assistance in connection with legal practice without being registered as migration agents. They will no longer be able to be registered migration agents: s 276 of the Act.

Newly admitted Australian legal practitioners still within their supervision period may still become registered migration agents. In fact those practitioners may not provide immigration assistance to their clients unless they are registered migration agents. Their dual registration may continue for up to 4 years. This is intended to facilitate such lawyers doing immigration work while completing their supervision period.

The definition of Australian legal practitioner in s 275 of the Act, as amended, excludes lawyers who are admitted but who do not hold a practising certificate. It also excludes lawyers who are eligible to practice under the law of a country other than Australia or New Zealand. Those practitioners will need to register as a migration agent to be able to give immigration assistance in Australia.

Regulation

‘Unrestricted’ Australian legal practitioners are not subject to regulation by the Office of the Migration Agents Registration Authority (OMARA), whereas registered migration agents – including those who are ‘restricted’ Australian legal practitioners – are.

To be registered as a migration agent, an eligible ‘restricted’ Australian legal practitioner must satisfy the requirements of s 289A of the Act.

A registered migration agent must notify OMARA in writing within 28 days of becoming a legal practitioner, with a penalty of 100 penalty units for failure to do so: see s 312 of the Act. They will then be de-registered by OMARA.

Forms

From 22 March 2021 a legal practitioner who wishes to commence providing immigration assistance and has never been issued a Migration Agent Registration Number (MARN), will
need to complete the Australian Legal Practitioner Number (LPN) form from the Department of Home Affairs website. Al link to this form is available on the Immigration matter plan.

Appointment of a Registered Migration Agent, Legal Practitioner or Exempt Person, form 956 allows the holder of an Australian Legal Practising Certificate to advise the Department of Home Affairs that they have been appointed by a client to provide immigration assistance under the Migration Act 1958 and, if applicable, to receive documents on their behalf.

The By Lawyers Immigration Guide has been updated accordingly. This publication is available to assist lawyers doing immigration work for their clients.

Immigration – FED

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Two important changes to Australian immigration law commence on 16 November 2019.

  • The Skilled Employer Sponsored Regional (Provisional) visa 494 is replacing the Regional Sponsored Migration Scheme visa 187.
  • The Skilled Work Regional (Provisional) visa 491 is replacing the Skilled Regional (Provisional) visa 489.

The new visas allow skilled workers to work in regional Australia. They can be a pathway to permanent residency, via the Permanent Residence (Skilled Regional) visa 191, which commences in November 2022.

Applicants for the Skilled Employer Sponsored (Regional) visa 494 must be under the age of 45 at the time of application, have competent English and at least three years full-time relevant work experience in the nominated occupation, or a related field, at the same level of skill. The visa is for a five-year period.

Applicants for the Skilled Work Regional (Provisional) visa 491 must be under the age of 45 at the time of application, complete a positive skills assessment, be nominated by an Australian state or territory government agency, or be sponsored by an eligible family member residing in the regional area and be invited to apply for the visa after the submission of an expression of interest through SkillSelect. The visa is also for a five-year period.

The By Lawyers Immigration publication will be updated accordingly.

New sponsored parent visa – Immigration – FED

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A new Sponsored Parent (Temporary) visa (subclass 870)has been created.

Applications for the new visa will open on 1 July 2019.

This visa allows biological parents, adoptive parents, step-parents or parents-in-law of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen to visit Australia for periods of 3 or 5 years at a time, but with a maximum combined period of 10 years.

Applications for the new visa can only be made outside Australia and online through ImmiAccount.

An applicant must be sponsored by an ‘approved parent sponsor’.

The application must be lodged within 6 months of approval of the applicant’s sponsor as an approved parent sponsor. The criteria for an approved parent sponsor is set out in Division 2.13A – Criteria for approval of family sponsor, of the Migration Regulations 1994.

The sponsored parent visa will only be granted to maximum of 15,000 applicants each year.

Because of the advance warning regarding the commencement date for the new visa, practitioners might expect to commence receiving enquiries about it now, so the commentary in the By Lawyers Immigration guide has been updated accordingly. The expected average processing times for the new sponsored parent visa are currently unknown.

Immigration – amendments delayed – FED

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Amendments under the proposed Migration Amendment (Regulation of Migration Agents) Bill 2018 (Cth), currently before the senate, lawyers will be able to conduct immigration matters as part of their usual practice, will no longer have to register as migration agents and will not be subject to regulation by the Migration Agents Registration Authority (MARA). An implementation date of 19 November was originally set for this change.

Unfortunately the senate has not been able to find the time to consider or pass the amending legislation and the intended implementation date of 19 November 2018 will therefore no longer be possible. A new proposed implementation date will need to be determined when and if the legislation passes.

In the meantime double regulation continues and Australian Legal Practitioners must continue to register as Migration Agents with OMARA before they can conduct immigration work.

By Lawyers will keep you updated on the progress of this Bill. The By Lawyers Immigration Guide is available to assist lawyers who conduct immigration matters.

FED – Immigration – Labour Market Testing

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The recent changes to Labour Market Testing requirements for Temporary Skill Shortage visa nominations have been incorporated into the commentary in the By Lawyers Immigration Guide.

The testing time before a nomination is lodged has changed from 6 months to 4 months. At least two advertisements are still required for the nominated position, however the information that needs to be included has become:

  1. the title, or a description, of the position;
  2. the skills or experience required for the position;
  3. the name of the approved sponsor or the recruitment agency being used by the sponsor; and
  4. the annual earnings for the position unless the annual earnings will be lower than AUD96,400. It is acceptable to publish a salary range, e.g. AUD80,000 to AUD90,000.

Advertised positions must remain open for application for at least 4 weeks from first publication, regardless of the medium used. General classified sites and social media platforms are still not suitable media for Labour Market Testing purposes, however LinkedIn’s online recruitment platform is acceptable.

Alternative requirements apply for ‘select occupations’ and ‘select positions’ such as for outstanding and internationally recognised talent in sport, academia or as a top chef. Also included are changes due to business restructures, or where the annual earnings are not less than AUD250,000, or for particular medical personnel.

It is still mandatory under the Migration Act to provide evidence with the nomination application of the sponsor’s efforts to find suitably qualified and experienced Australian citizens or permanent residents to fill the position/similar positions. This entails copies of advertisements and a receipt for any advertising fees being provided and/or a written submission for ‘select’ nomination applications.

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