Migration Legislation with Annotations.

2120 Pages·2016·7.364 MB·English

by  Natasha Bosnjak

Migration Law
Annotated Migration Act with Related
Commentary
Thomson Reuters (Professional)Australia Limited
19 Harris Street Pyrmont NSW 2009
Tel: [phone] Fax: [phone]
[email protected]
www.thomsonreuters.com.au
For all customer inquiries please ring 1300 304 195
(for calls withinAustralia only)
INTERNATIONALAGENTS & DISTRIBUTORS
NORTHAMERICA ASIAPACIFIC
Thomson Reuters Thomson Reuters
Eagan Sydney
United States ofAmerica Australia
LATINAMERICA EUROPE
Thomson Reuters Thomson Reuters
São Paulo London
Brazil United Kingdom
Migration Law
Annotated Migration Act with Related
Commentary
BEN PETRIE
LLB (Hons), BA, BSc
NATASHA BOSNJAK
LLB (Hons), BA, Grad Dip (Psych)
FOREWORD BY
JUDGE GRANT RIETHMULLER
LAWBOOK CO.
2016
PublishedinSydneyby
ThomsonReuters(Professional)AustraliaLimited
ABN64058914668
19HarrisStreet,Pyrmont,NSW
NationalLibraryofAustralia.
Cataloguing-in-Publicationentry
MigrationLaw:AnnotatedMigrationActwithRelatedLegislation/Ben
Petrie;NatashaBosnjak
Includesindex.
ISBN:9780455237732(paperback)
Subjects:Emigrationandimmigrationlaw—Australia.
Australia—Emigrationandimmigration.
342.94082
©2016ThomsonReuters(Professional)AustraliaLimited
Thispublicationiscopyright.Otherthanforthepurposesofandsubject
totheconditionsprescribedundertheCopyrightAct,nopartofitmay
inanyformorbyanymeans(electronic,mechanical,microcopying,
photocopying,recordingorotherwise)bereproduced,storedina
retrievalsystemortransmittedwithoutpriorwrittenpermission.
Inquiriesshouldbeaddressedtothepublishers.
ProductDeveloper:CatherineFitzgerald
Editor:NikkiSavvides
Editorialteam:AngelaBandiera,NicolaBodor,ElizabethGandy,Paul
Godwin,UrsulaNeumayer-Stewart,VanessaSchlenert,ChrisWallace
PrintedbyLigarePtyLtd,Riverwood,NSW
ThisbookhasbeenprintedonpapercertifiedbytheProgrammeforthe
EndorsementofForestCertification(PEFC).PEFCiscommittedto
sustainableforestmanagementthroughthirdpartyforestcertificationof
responsiblymanagedforests.Formoreinfo:http://www.pefc.org
FOREWORD
In Australia migration law has a long and complex history reflected in a vast array of visa
categories contained in long and detailed legislative provisions. Over the last 20 years
migration cases have dominated the judgments of the High Court of Australia as Australia’s
administrative law has developed through the close scrutiny of thousands of litigants
challenging decisions made under the MigrationAct.
The law in this area is inevitably controversial, involving those with hopes and dreams of a
better life through refuge in a country of safety, opportunities to be educated, reuniting with
familymembers,orbybringingskillstocontributetolifeinAustralia.Thefundamentalnature
of migration issues invites emotive political debate about significant policy issues that affect
Australian society as a whole.
What is easily overlooked in this turbulent arena of political debate is that the meaning and
operationofthespecificprovisionsoftheActisofmoreimmediateconcerntovisaapplicants.
Ultimately it is the technical provisions in force at the time of a visa application that
determineswhetheranindividualisabletoobtain,orretain,avisa,residency,orcitizenship.It
isthroughthemyriadofindividualcases,decidedinthethicketoftechnicalprovisionsthatthe
legal and social policy issues have emerged. The law has tested the relationship between the
judicial and administrative branches of government as courts have been persuaded to quash
decisions of the Minister, delegates and tribunals in cases where the outcomes have not been
effected in accordance with substantive or procedural law. This area of law highlights the
importance of the rule of law in a just society.
Thecarefulpractitionermustnotonlydealwithlegislationandregulationsthatarelengthyand
technical, but also an enormous volume of case law. The sheer number of migration and
refugee cases reported on the Australian Legal Information Institute website highlights the
problemoflocatingrelevantjudgments:asearchforcaseswheretheMinisterforImmigration
was a party returns over 30,000 decisions. In the High Court alone, there are 115 appeal
decisions to which the Minister for Immigration has been a party. No other civil law litigant
hashadsomanycasesintheHighCourtinthelast20years.AsajudgeoftheFederalCircuit
Court, where the majority of migration cases are filed, I am only too well aware of the
complexities that arise from the unique facts and circumstances of individual cases, each
requiringindividualconsideration.Thisoverwhelmingvolumeofmaterialshascalledoutfora
work such as this for some time.
Ben Petrie and Natasha Bosnjak, have undertaken the herculean task of collecting and
identifying the seminal decisions in a structured and readable form to explain the operation of
the key provisions of theAct.They have clearly drawn upon their experience as litigators and
academic training to produce such a practical and accessible work. In an area such as this,
where there is such an overwhelming volume of materials, it is the careful selection of key
references and information that adds the greatest value for those dealing with cases on a daily
basis.
Practitioners, judges and administrators will benefit greatly from the resources so thoughtfully
collected in the annotations, coupled with the clear statements of the law, and selected quotes
©2016THOMSONREUTERS v
MigrationLaw
from the cases. I have no doubt that access to these materials will ensure that visa applicants
willavoidmanytechnicalpitfalls,andpresenttheircaseswiththenuancesofthelawinmind,
enabling them to have their applications determined on their merits. Fortunately the format of
this work allows for regular updates, so important in an area of law where the legislation,
regulations and case law changes so rapidly and relentlessly.
We are indeed fortunate that two lawyers with such experience at the coal face of migration
lawlitigationhavebeenpreparedtosharetheirinsightfulandeminentlypracticaldistillationof
the law. I can only commend the work to all who seek to understand the operation of the
relevant provisions of theAct.
Judge Grant Riethmuller
Federal Circuit Court
Chambers, Melbourne
1 May 2016
vi MigrationLaw
PREFACE
ThequestionofhowtotreatforeignershaslongoccupiedacentralplaceinAustralia’snational
conscience.OneofthefirstpiecesoflegislationpassedbytheParliamentofthenewlyformed
federation in 1901 was the Immigration Restriction Act 1901 (Cth) which, together with the
Pacific Island Labourers Act 1901 (Cth) and the Post and Telegraph Act 1901 (Cth), outlined
the nation’s vision of a “white” future, utilising the infamous “Dictation Test”. Foretelling a
trend that was never to cease, the legislation was also among the first to be amended with the
passage of the Immigration Restriction Amendment Act 1905 (Cth) which made the Dictation
Test even more difficult for immigrants to overcome. Between 1905 and 1949 the legislation
would be amended a further 13 times, operating in tandem with various other pieces of
migration-focussed laws.
The Migration Act 1958 (Cth), which is the principal focus of this book, consolidated and
modernised (by the standards of the time) Australia’s migration legislation. The Minister for
Immigration who introduced the Bill, the Hon.A.R. Downer, MP, had been a prisoner of war
in Changi1 and, no doubt reflecting on his own experiences, adopted a more humane approach
to the treatment of migrants. Having discarded the Dictation Test, which was described in the
Explanatory Memorandum to the Bill as “objectionable on a number of grounds”,2 he
describedtheActasthe“finestimmigrationcharterthattheworldhasyetseen”.3Theapparent
price of achieving this feat however was an Act that was “necessarily rather long and
technical”.4 Evidently, the Minister did not anticipate the extent to which the scheme of
legislation would be built upon over the next fifty years. Each Government since, even where
the party in power has not changed, has sought to impose its own peculiar migration policy,
withthenecessaryamendmentstotheAct.Theresultisauniquemixtureofdraftingstylesand
policy objectives contained within a single piece of legislation.
As long as Australia remains a popular destination for migrants from around the world, the
Department, tribunals and courts will be called upon to interpret the various provisions of the
Act and the Regulations, while being ever-mindful of the growing body of case law that has
traversedthesameground.TheDepartmenthasforecastinthisregardthatyearlyimmigration
is set to increase to approximately 525,000 (excluding forecast departures) by the year ending
June 2019.5 Unsurprisingly, a large number of those whose migration applications are rejected
seek to challenge the decision made against them. In the year ending June 2015, a total of
18,534 applications for review were made to the former Migration Review Tribunal and
Refugee Review Tribunal.6 And those figures have predictably translated to a significant
number of judicial review cases before the courts. Thus, over 90% of all applications for
constitutional writs made to the High Court in the past 5 years have been migration matters.7
IntheFederalCourt,atotalof367casesarisingundertheMigrationActwereinitiatedforthe
year ending June 2015, representing a 36% increase on the preceding year.8 But it is the
Federal Circuit Court which hears the majority of cases: in the 2014-15 financial year, 3,896
applications for judicial review were filed across the country.9This is a significant increase on
the959applicationsthatwerefiledinthecorrespondingperiodof2010-11.10Theresultisthat
the MigrationAct is one of the most litigated pieces of legislation in the country.
©2016THOMSONREUTERS vii
MigrationLaw
Giventheregularchangesinthelegislationandcaselawthatmigrationagentsandlawyersare
required to keep abreast of, it is surprising (or perhaps unsurprising) that the Act has not
previously been subjected to a rigorous section-by-section exposition. That has been the
objective of the authors of this book. We have sought to explain each section of the Act by
reference to illuminating case law or explanatory memoranda. Inevitably, when dealing with
legislation of the size of the Act, we have had to select certain cases over others with the
consequence that some cases which people may consider to be important have been excluded.
We have also provided limited guidance in relation to the Regulations, Ministerial Directions
and other Legislative Instruments.
In the process of drafting this book large parts have had to be revised, and revised again, due
to significant legislative amendments or judicial pronouncements. In particular, the Migration
Review Tribunal and Refugee Review Tribunal were amalgamated with the Administrative
Appeals Tribunal on 1 July 2015 pursuant to the Tribunals Amalgamation Act 2015 (Cth).
Additionally,theImmigrationAssessmentAuthoritywascreatedasaseparateofficewithinthe
AdministrativeAppealsTribunaltoadministeranewfasttracksystemforcertainunauthorised
maritime arrivals or as specified by the Minister, and commenced hearing matters in early
2015. Important cases have also been handed down. In Plaintiff S297/2015 v Minister for
Immigration and Border Protection [2015] HCA 3, the Minister had refused to grant the
plaintiff a protection visa because of the plaintiff’s status as an unauthorised maritime arrival.
The High Court held however that the Minister could not attach an additional consequence to
a person being an unauthorised maritime arrival beyond that fixed by theAct and ordered the
Minister to instead grant the plaintiff a permanent protection visa, depriving the Minister of
any further opportunity to consider the matter. In relation to migration visas, in Ahmad v
Minister for Immigration and Border Protection [2015] FCAFC 182, a Full Court of the
Federal Court determined that an applicant for a skilled visa may seek merits review of a
refusal to grant the visa notwithstanding that the proposed sponsor’s nomination of the
applicant has been refused. In more recent times, in Plaintiff M68/2015 v Minister for
Immigration and Border Protection & Ors [2016] HCA1 the High Court considered, among
other things, the circumstances in which the Executive may detain a person; the scope and
limitsofCommonwealthExecutivepower;theconstitutionalvalidityofs198AHAoftheAct;
and the power of the Commonwealth to enter into and give effect to arrangements with a
foreign country under that provision for the “regional processing” of unlawful maritime
arrivals. These judgments represent but a few of those delivered in the preceding 12 months
that the practitioner who specialises in migration law will find to be of interest.
Whilewecouldgoonprovidingfurthermusingsinrelationtothevagariesofmigrationlaw,it
is rather appropriate that we acknowledge those who played an important role in the
preparation and production of this book.We are grateful to the team atThomson Reuters and,
in particular, single out for thanks Catherine Fitzgerald for her unwavering support, guidance
and encouragement. We also record our sincere appreciation (in alphabetical order) to Nicola
Bodor, Liz Gandy, Ursula Neumayer-Stewart, Nikki Savvides, Vanessa Schlenert and the
broader production and editorial team, for calmly overseeing the various stages of the project
and expertly handling a manuscript of such a large size. Finally, the authors thank Judge
Riethmuller for kindly agreeing to write a foreword to this book.
The authors have endeavoured to state the law as at 1 May 2016.Any errors in the book are
that of the authors alone.
Ben Petrie
Natasha Bosnjak
May 2016
viii MigrationLaw
Preface
1 Australian Dictionary of Biography, http://adb.anu.edu.au/biography/downer-sir-alexander-russell-alick-
12434,accessed10May2016.
2 MigrationBill1958(Cth),ExplanatoryMemorandumat[7].
3 AustralianDictionaryofBiography(n1).
4 MigrationBill1958(Cth),ExplanatoryMemorandum,p1.
5 TheDepartmentofImmigrationandBorderProtection,“TheOutlookforNetOverseasMigration:Asat
June2015”,June2015,https://www.border.gov.au/ReportsandPublications/Documents/statistics/nom-June-
2015.pdf,accessed10May2016.
6 AustralianGovernment,MigrationReviewTribunal–RefugeeReviewTribunal,“AnnualReport2014-15”,
29September2015,http://www.aat.gov.au/aat/files/MRDAnnualReports/MRTRRTAR201415.pdf,accessed
10May2016.
7 High Court of Australia, Annual Report 2014-2015, 12 November 2015, 19, 23
(http://www.hcourt.gov.au/assets/corporate/annual-reports/hca-annual-report-2014-15.pdf).
8 Federal Court of Australia, Annual Report 2014-2015, 16 September 2015, 17
(http://www.fedcourt.gov.au/__data/assets/pdf_file/0006/29778/Annual-Report-2014-15.pdf).
9 FederalCircuitCourtofAustralia,AnnualReport2014-2015,2September2015,59.
10 Ibid,66.
©2016THOMSONREUTERS ix