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New Visa Requirements Thwarted by Senate

What happened?

In November 2017, the Minister for Immigration introduced regulations containing a raft of extra measures and imposing harsh penalties for certain migrants. The Migration Legislation Amendment (2017 Measures No. 4) Regulations included changes such as a 10 year ban to be applied where a person has made a false or misleading statement, and the requirement for a single identity.

A motion to disallow these regulations has since succeeded, and on 5 December 2017 the entirety of the amendments were disallowed in full.

While they are no longer in force, it is important to note that applications lodged between 18 November and 5 December 2017 may still be subject to them.

So what changes have been reversed?

Fraud (Public Interest Criteria 4020)

Perhaps the most daunting of the measures, were measures that sought to increase the penalty for submitting false or misleading documents to a ban on individuals from applying for 10 years.

The law as it currently stands is that where individuals submit false documents or make misleading statements, their visa (be it temporary or permanent) will be cancelled and they will face a 3 year ban on applying for any Australian visas.

Public Health Care Debts (Visa Condition 8602)

The measures also introduced a new visa condition 8602 which requires temporary visa holders not to have an outstanding public health debt. Where these temporary residents do incur a debt, they would face visa cancellation and difficulties in obtaining further visas.

As these measures have since been reversed, this visa condition cannot be imposed. It is notable, however, that having an outstanding debt to Australia is already detrimental to further visa applications. But without the visa condition 8602, migrants aren’t exposed to the risk of cancellation of their visa if they undergo necessary medical treatments but cannot pay back the costs of their healthcare.

Mandatory Conditions
The measures sought to make further mandatory conditions for temporary visas, including that the person:

  • not engage in criminal conduct;
  • not endanger or threaten any individual;
  • not engage in activities disruptive to the Australian community; and
  • use the same name / identity in all dealings with the government.

The last item was introduced in light of the actions of Man Haron Monis (perpetrator of the Martin Place siege), who used multiple identities in his dealings with government authorities. While the reaction is quite understandable, it was also thought to be unnecessarily difficult in practice, especially with migrants who have may have reasonably accumulated multiple transliterations of their non-English name.

Conclusion

The nature of migration law is that it works primarily on delegated legislation and lots of regulations. As such, the Minister for Immigration may at any time introduce new regulations that become enforceable as soon as they are registered. Such rules and regulations are not passed into law directly by the Parliament, but by either the House of Representatives or the Senate – who can also disallow (veto) them.

This important mechanism for overseeing regulations has been successful this time in disallowing measures that could be detrimental to certain migrants.

It is important to always have up-to-date advice and information considering the fast pace that migration law moves.