Immigration Update : The Latest Developments March / April 2023

April 21, 2023

We are excited to bring you the latest updates regarding the immigration policies of the Australian Government. In the months of March and April 2023, the government has made significant updates that are noteworthy.

In the following section, we provide a summary of the latest updates!

Immigration Updates – March to April 2023

Family violence evidentiary requirements amended

The Australian Government recently announced changes to evidence requirements for victims of family and domestic violence seeking visa assistance. These measures were put in place after consultation with experts across the family violence support and legal sectors.

As of 31 March 2023, a new instrument – Migration Regulations 1994—Specification of evidentiary requirements—family violence – has been implemented under the Migration Regulation 1994, to reduce the burden placed on victims of family and domestic violence seeking a visa.

One of the biggest challenges victim of family and domestic violence face is providing evidence to meet the requirements of the existing special provisions relating to family violence. To address this, the Albanese Labor Government has made changes to increase flexibility around the evidence that applicants must provide in order to make a non-judicially determined claim of family violence.

Here are some of the specific measures that have been introduced:

Midwives have been added to the list of medical professionals who can provide evidence
Risk assessments and reports can now be used as evidence in lieu of statutory declarations
Additional advocacy and crisis service providers have been added who can provide evidence
The statutory declaration requirement for some healthcare professionals has been removed

These changes are designed to make it easier for applicants to obtain evidence from professionals and service providers that they are already engaged with. It is a positive step towards protecting those who have experienced such trauma and ensuring that they receive the necessary assistance during the visa application process.

If you or someone you know is experiencing, or at risk of experiencing, family, domestic, or sexual violence, call 1800RESPECT on 1800 737 732 or visit 1800RESPECT.org.au.

If you are concerned about your behaviour or use of violence, you can contact the Men’s Referral Service on 1300 766 491.

Federal Government introduces the Protecting Workers Entitlements Bill 2023

The Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 was introduced to Parliament in March 2023 and seeks to clarify that migrant workers are entitled to the same workplace protections as Australians under the Fair Work Act 2009.

One significant amendment is the clarification of the interaction between the Fair Work Act and the Migration Act 1958. This means that all migrant workers, including temporary workers, will be entitled to the same benefits under the Fair Work Act, regardless of their immigration status, even if there is a breach of the Migration Act or visa conditions. For example, if a migrant worker is working in breach of their visa conditions, they will still be entitled to benefits such as annual leave or notice of termination under the Fair Work Act.

It is important to note that these changes will not affect a person’s right to work in Australia under the Migration Act, nor will they affect any consequences of non-compliance with the Migration Act.

This bill is a significant step towards ensuring that migrant workers in Australia receive fair and equal treatment in the workplace.

Extended work rights for international graduates in target fields of study

For international students who have graduated from an Australian higher education provider, post-study work rights will be extended to target health, teaching, engineering, and agricultural fields. These extended work rights take effect from 1 July 2023.

Current settings will be increased by two years for each graduate level from:

two years to four years for select Bachelor degrees
three to five years for select Masters degrees
four years to six years for all Doctoral degrees

Current settings will be maintained for existing regional and remote Australian settings and where relevant will be eligible for the additional two years.

Eligible graduates with a valid Temporary Graduate Visa on 1 July 2023 or who apply for a Temporary Graduate Visa after 1 July 2023 will be considered for the extension.

Transitional 408 visa for subclass 485 visa holders

Transitional arrangements may be made for Temporary Graduate Visa (TGV) holders whose visa expires between 1 September 2022 and 1 July 2023. These visa holders may apply to extend their work rights using a Temporary Activity (subclass 408) COVID-19 Pandemic event visa, valid for two years.

This transitional visa may also be eligible for subclass 408 visa holders who were in Australia throughout the pandemic period.

20 top occupations in demand

The Labour Market Update report lists the top 20 occupations in demand in Australia this quarter.

The top 10 occupations in national demand in that quarter were:

Registered Nurses
Software and Applications Programmers
Aged and Disabled Carers
Child Carers
Construction Managers

The full list can be accessed here.

The top 20 occupations reported are in demand across various industries, including healthcare, construction, information technology, engineering, and professional services. The demand for skilled workers in certain occupations in Australia, as identified in the labour market update report, may have implications for skilled migration policies as skilled migration programs, are designed to attract skilled workers to fill the gaps in the Australian labour market.

Victoria subclass 491 nominations open to metropolitan Melbourne applicants

Victoria’s subclass 491 visa program has expanded to include skilled migrants living anywhere in Victoria. Previously, metropolitan Melbourne residents who wish to relocate to work and live in a designated regional area of Victoria were ineligible to apply.

To apply for a subclass 191 visa which provides permanent residency, visa holders must live, work and study in a regional area of Victoria for at least three years. There are four steps to subclass 491 visa nominations:

Submit an Expression of Interest (EOI) to the Australian Government’s Department of Home Affairs using SkillSelect
Using the EOI number received from Step 1, submit a Registration of Interest (ROI) for Victorian nomination via the Live in Melbourne portal
After you are selected to apply for a Victorian visa nomination, apply for a subclass 491 visa nomination on the Live in Melbourne portal
If your nomination application is approved, submit a visa application with the Australian Government’s Department of Home Affairs

Registration of Interests for the subclass 491 visa closes on 5 May 2023.

Fast track Victoria 491/190 nomination for health and teaching occupations

Eligible visa candidates with a health, teaching, or social services occupation who meet the minimum visa requirements can access fast track nomination.

A fast track nomination will select Registrations of Interest (ROI) to apply for visa nomination within two weeks of submission. Upon meeting all minimum visa requirements, it will take five business days to approve Victorian visa nominations.

The list of occupations eligible for fast track nomination can be found here.

Registration of Interests for the subclass 491/190 visa closes on 5 May 2023.

New Working Holiday visa arrangements for UK passport holders

When the Australia-United Kingdom Free Trade Agreement (Australia-UK FTA) comes into force, UK passport holders will be able to:

apply for a Working Holiday visa between the ages of 18 and 35 years inclusive
be granted up to three Working Holiday visas without having to meet any specified work requirements. This does not include any ‘COVID-19 affected visa’.

The new arrangements will start for holders under the Working Holiday Maker (WHM) program within two years, on a date agreed on between Australia and the UK.

High Court Case Update – Ministerial intervention guidelines unlawful

On Wednesday, 12 April, a majority of the High Court of Australia ruled that the 2016 guidelines were deemed unlawful, at least as far as they instructed departmental officers to form a view about “unique or exceptional circumstances”. The Minister’s power to intervene under ss351, 417 and 501J of the Migration Act 1958 (Cth) is one that is meant to be exercised by the Minister “personally” and therefore cannot be delegated.

By majority, the High Court has ruled in favour of two appellants in the appeal of Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Ors; DCM20 v Secretary of Department of Home Affairs & Anor; which concerns the Minister’s discretionary powers under S 35(1) of the Migration Act 1958 to substitute an adverse decision of a relevant Tribunal with a more favourable decision.

Section 351(3) of the Act made explicitly provides the power in s 351(1) is to be exercised by the Minister personally. The Department’s approach of using ‘guidelines’ for delegate assessment on behalf of the Minister is at odds with this recent ruling. The guidelines specify the criteria for referral to the Minister, and only those that meet the criteria are presented to the Minister, while the rest are rejected without being considered.

It was found that the Minister cannot base their intervention decision “by reference to whether a departmental officer or any other person might think it to be not in the public interest to substitute a more favourable decision for a decision of the tribunal” as this does not constitute acting personally.

As stated by Kiefel CJ, Gageler, and Gleeson JJ:

“the parliament has seen fit to entrust to the minister alone the evaluation of the public interest in substituting a more favouable decision for a decision of the tribunal”.

This case highlights the importance of a Departmental review of guidelines to ensure Ministerial powers are not unlawfully exercised by Departmental officers.

This decision has the potential to impact numerous individuals who have applied for ministerial intervention in their quest for a visa.

Increased quota for Tasmania subclass 190 nomination

There has been an additional 150 subclass 190 visas made available in Tasmania. New registrations of interest or applications for nomination will not be closed by the Tasmanian Skilled Migration State Nomination. Applicants will continue to be invited for nomination throughout 2023 and into the 2023-24 program.

Click here to access more information about April 2023 update to the Tasmanian state program.

Changes to the migration program can occur without notice. The above information is not intended to be legal advice and is correct as of the date of writing this article.

Contact Migrations Affairs to speak with our immigration experts for tailored advice on the circumstances and eligibility.

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