Migration Amendment (Resolution of Status Visa Additional Cohort) Regulations 2023

The Migration Amendment (Resolution of Status Visa Additional Cohort) Regulations 2023 (the amending Regulations) amend the Migration Regulations 1994 (the Migration Regulations) to allow for persons affected by the High Court’s decision in Love v Commonwealth; Thoms v Commonwealth (2020) 270 CLR 152 (Love) who have accepted an offer of permanent stay in Australia made by the Australian Government to be granted a permanent visa, the Subclass 851 (Resolution of Status) (RoS) visa. The grant of a permanent RoS visa also facilitates access to government entitlements and services for which holders of permanent visas are eligible.

In Love, a majority of the High Courtheld that an Aboriginal or Torres Strait Islander non-citizen who meets the tripartite test as set out by Brennan J in Mabo v Queensland [No. 2] (1992) 175 CLR 1 (Mabo [No. 2]) is not an ‘alien’ within the meaning of paragraph 51(xix) of the Constitution. The effect of this decision is that there is a category of persons who are neither Australian citizens nor aliens. To detain a person, an officer of the Department must reasonably suspect that the person is an unlawful non-citizen who is an alien. Otherwise, the person cannot be detained or removed from Australia under the Migration Act, which is enacted under the ‘naturalisation and aliens’ power in paragraph 51(xix) of the Constitution.

The amending Regulations amend the Migration Regulations to provide that a person is taken to have made a valid application for a RoS visa where:

·         the Minister has issued a certificate to a person who is not or could not be detained under section 189 of the Migration Act by reason of the High Court’s decision in Love, and

·         the Australian Government has made, and that person has accepted, an offer of permanent stay in Australia and the authorised officer has endorsed in writing the person’s acceptance.

A person who, under the Migration Regulations as amended, is taken to have made a valid application for a RoS visa would only be required to satisfy two criteria to be granted the visa, namely that the offer of a permanent stay has not been withdrawn, and that the person has not been assessed by the Australian Security Intelligence Organisation to be a risk to national security.

Love-affected RoS visa applicant would not need to satisfy the criteria which other applicants for the RoS visa are required to satisfy, such as health criteria. This recognises the unique constitutional status of the Love-affected cohort, and that members of the cohort cannot be removed or deported from Australia even if they do not hold a visa. Conversely, an applicant for a RoS visa who is not affected by Love but who is instead a former holder of a temporary protection visa would not be required to satisfy the requirement that an offer of permanent stay has not been withdrawn. These cohorts are intended to remain separate, notwithstanding that the same class of visa is used to resolve their immigration status and provide a pathway to permanent residency.

The Migration Act specifies no conditions that need to be satisfied before the power to make the regulations may be exercised.

The matters dealt with in the amending Regulations are appropriate for implementation in regulations rather than by Parliamentary enactment. It has been the consistent practice of the Government of the day to provide for detailed visa criteria and conditions in the Migration Regulations rather than in the Migration Act itself. The Migration Act expressly provides for these matters to be prescribed in regulations, as can be seen in the authorising provisions listed in Attachment A. These include, for example, subsection 31(3), which provides that Regulations may prescribe criteria for a visa or visas of a specified class.

The current Migration Regulations have been in place since 1994, when they replaced regulations made in 1989 and 1993. Providing for these details to be in delegated legislation rather than primary legislation gives the Government the ability to effectively manage the operation of Australia’s visa program and respond quickly to emerging needs.

Written by Ross Ahmadzai

19 Dec, 2023

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