Migration (LIN 18/036: Period, manner and evidence of labour market testing) Amendment (LIN 23/072) Determination 2023 dated 8 December 2023 amends Migration (LIN 18/036: Period, manner and evidence of labour market testing) Instrument 2018 to streamline the LMT requirements by updating the manner in which LMT in relation to a nominated position must be undertaken. A person who nominates a proposed occupation or an applicant for a visa of a prescribed kind under section 140GB is required to meet the labour market testing (LMT) conditions, unless exempted. LIN18/036 specifies the manner in which the LMT must be undertaken in relation to a nominated position, including the language to be used for any advertising, the method of any such advertising, the period during which any advertising must occur, and the duration of any advertising. LIN 23/072 removes the mandatory requirement in paragraph 8(3)(a) of the LIN18/036 to advertise the nominated position on the Workforce Australia website (www.workforceaustralia.gov.au). The instrument also inserts new subsections 8(6) and (7) to clarify matters in relation to the duration of any advertisement of a nominated position, relevant to current subsection 8(5). Subsection 8(5) of LIN 18/036 allows for a period of at least four weeks where applications or expressions of interest for an advertised position may be received. The amendment allows for a continuing length of time that LMT is being carried out and continues unbroken for a minimum four-week period across two or more overlapping advertisements where applications or expressions of interests for an advertised position may be received. The instrument does not allow LMT over two or more consecutive (but not overlapping) or non-consecutive periods totalling a minimum of four weeks. The amendments are beneficial for employers wishing to nominate employees from overseas and will be applied prospectively. The instrument is registered on the Federal Register of Legislation on 10 December 2023 and commenced on 11 December 2023. To access the instrument, click here.

Australian Citizenship Amendment (Citizenship Repudiation) Bill 2023 amends the Australian Citizenship Act 2007 to enable the Minister to make an application to request that a court exercises its power to make an order to cease a dual citizen’s Australian citizenship, where the person has been convicted of a serious offence or offences. Under the 2020 legislation, section 36B allowed the Minister to make a determination that a dual national’s Australian citizenship ceased where the person demonstrated conduct that repudiated their allegiance to Australia, and that it would not be in the public interest for the person to remain an Australian citizen. Section 36D listed the circumstances where the Minister was allowed to make such determination. Sections 36B and 36D were found invalid by the High Court in Alexander v Minister for Home Affairs [2022] HCA 19 (Alexander) and Benbrika v Minister for Home Affairs [2023] HCA 33 (Benbrika) respectively. The High Court while invalidating these sections, held that the provisions conferred on the Minister an exclusively judicial function of adjudging and punishing criminal guilt which can only be exercised by a court. Australian Citizenship Amendment (Citizenship Repudiation) Bill 2023 provides that the Minister may make an application to a court, before the person has been sentenced, enlivening the court’s discretionary power to make a citizenship cessation order in certain circumstances as part of sentencing on conviction of a person for certain serious offences. The Bill provides that in order to support the court’s consideration and decision whether to make an order ceasing the person’s Australian citizenship, the Minister’s application to the court must include information about the person’s age, Australian citizenship and nationality or citizenship of any other countries. The Minister would be required to give the person written notice of the application as soon as practicable after the application is made and may give written notice of the application to any other persons the Minister considers appropriate. The amendments in the Bill would provide that a court may make a citizenship cessation order in certain circumstances as part of sentencing if: The Bill is registered on the Federal Register of Legislation on 1 December 2023 and will commence on the day after this Act receives the Royal Assent. To access the Bill, click here.

Migration Amendment (Location Requirements for Grant of Visa) Regulations 2023 dated 23 November 2023 amends the Migration Regulation 1994 to provide flexibility in relation to applications for Partner (Subclass 309 and 820) and Temporary Graduate (Subclass 485). Migration Amendment (Location Requirements for Grant of Visa) Regulations 2023: As part of Australia’s response to the COVID-19 Pandemic, various concessions were introduced to assist visa applicants who were affected by the COVID-19 Pandemic-related travel restrictions and border closures. These concessions included removing the requirements in relation to where the applicant must be located at the time of visa grant.  However, COVID-19 concessions ended on 25 November 2023. These amendments ensure that even after the lifting of COVID-19 concessions, the flexibility to the location requirements for visa grant, to be either in or outside Australia remains in place for these visas, and also extends this flexibility to the Subclass 820 Partner visa to align with the Subclass 309 Partner visa.  These amendments provide a beneficial flexibility that permits the relevant visa to be granted regardless of where the applicant is located at the time of visa grant. In addition, the Regulations also provide merits review avenues for applicants for a Subclass 309 visa, regardless of whether the application is refused while they are in or outside Australia. This continues and extends the position Subclass 309 visa applicants had under the ‘concession period’, to ensure that access to merits review is retained.  This facilitates access to merits review for applicants who may be affected by circumstance such as family violence and to align with the onshore Subclass 820 visa which provides for a Subclass 309 visa applicant to have standing to apply for merits review directly, rather than the sponsor. The instrument is registered on the Federal Register of Legislation on 24 November 2023 and commenced on 25 November 2023. It is currently in force. To access the instrument, click here.

Migration Amendment (Expanding Access to Temporary Residence Transition Stream) Regulations 2023 dated 23 November 2023 amends the Migration Regulations 1994 to expand pathways to permanent residence for TRT stream SC 482 and 457 skilled workers. The amendments expand access to the Temporary Residence Transition (TRT) stream in the Subclass 186 visa and Subclass 187 visa for all holders of SC 482 and SC 457 visas, irrespective of the stream in which their visa is held. It also reduces the length of TRT eligibility period for the approval of nomination from three out of four years to two out of three years. Moreover, the occupation identified in the nomination for the TRT stream is no longer required to be listed on the Medium and Long-term Strategic Skills List or the Regional Occupation List. This change enables employers to sponsor workers in a wider range of occupations on a permanent basis, helping to retain staff and alleviate skills shortages. It will also ensure that pathway to permanent residency for subclass 482 visa holders will not be lost if their occupation is removed from the relevant occupation list. In addition, the instrument extends the permission to allow all employers including parties to a work agreement who sponsored a worker under a labour agreement, to make a nomination under the TRT stream. Also, the Regulations remove the limit on the number of Subclass 482 visa applications in the Short‑term stream that can be made in Australia. The previous requirement that an applicant must be offshore for their third or subsequent 482 visa has now been repealed to reflect the decision that all streams of the Subclass 482 visa will have a pathway to permanent residence. Considering the changes, there is no need for preventing the making of multiple applications for the Subclass 482 visa in the Short-term stream in Australia. The instrument is registered on the Federal Register of Legislation on 24 November 2023 and commenced on 25 November 2023. It is currently in force. To access the instrument, click here.

Migration (Ending the COVID-19 Concession Period) (LIN 23/063) Specification 2023 dated23 November 2023 specifies 25 November 2023 as the end date of the COVID-19 Concession period introduced by the former Government on 19 September 2020, which provided various concessions in relation to visas as a response to the COVID-19 Pandemic. Regulation 1.15N was inserted in the Regulations on 19 September 2020 to make provision for concession period as part of Australia’s response to the COVID-19 Pandemic. Travel restrictions associated with the COVID-19 Pandemic made it difficult for visa applicants to satisfy some of the criteria and requirements for the grant of certain visas, including requirements in relation to where the applicant must be located at the time of visa grant. The COVID-19 Concessions Regulations amended the Migration Regulations to assist such temporary and provisional visa holders, who were affected by the consequences of the COVID-19 Pandemic, such as border closures, restrictions imposed on businesses and the general economic downturn to meet visa requirements. All COVID-19 Pandemic-related international travel restrictions have now been lifted, and travellers to Australia no longer need to provide information in relation to their vaccination status or seek travel exemptions and hence it is appropriate to end the concession period. Applicants who applied for a visa during the concession period but who have not yet had a visa decision, for them the concessions still apply, and the concession provisions remain in effect for this legacy cohort. The purpose of Migration (Ending the COVID-19 Concession Period) (LIN 23/063) Specification 2023 is to specify 25 November 2023, as the day on which the COVID-19 Pandemic concession period ceases. The instrument is registered on the Federal Register of Legislation on 24 November 2023 and commenced on 25 November 2023. It is currently in force. To access the instrument, click here.

The Department of Home Affairs vide their email dated 3 November 2023 with subject line “Expanding Employer Sponsored Pathways to Permanent Residence (PR)” has informed all Registered Migration Agents about the Australian government’s plan to create clear pathways to PR for all Temporary Skill Shortage visa streams and for this purpose it is working on implementing changes to the Temporary Skill Shortage visa, Temporary Residence Transition stream (TRT) of the Employer Nomination Scheme and Regional Sponsored Migration Scheme. At present there are limited pathways to PR for temporary skilled visa holders, therefore the government has proposed the following changes to create clear pathways to PR for all TSS visa streams: Changes to the TSS visa will apply to new applications lodged on or after 25 November 2023 and changes to the Temporary Residence Transition (TRT) stream nomination requirements will apply to new ENS/RSMS nomination applications and applications that are yet to be finally determined as at 25 November 2023.