OFFICIAL: Sensitive Legal privilege
Submission
For decision
PDMS Ref. Number: MS24-000053
Date of Clearance: 06/08/2024
To
Minister for Home Affairs, Minister for Immigration and Multicultural
Affairs, Minister for Cyber Security
Subject
For approval and making: Home Affairs Legislation (Minister—
Decision-making powers for Immigration Group and National
Security and Resilience Group) Amendment (Resolution of Status
Visa Additional Cohort) Delegation (ADMIN 24/006) 2024
Timing
At your earliest convenience.
Recommendations
That you:
1.
agree to delegate your power to issue a certificate under the
agreed / not agreed /
Migration Regulations 1994 for certain Resolution of Status
please discuss
(Class CD) visa applicants to SES Band 1 and 2 employees in
Immigration Policy Division and Immigration Compliance
Division, and any SES Band 3 position holder for Immigration
Group; and
2.
sign and
date Home Affairs Legislation (Minister—Decision-
signed / not signed
making powers for Immigration Group and National Security
and Resilience Group) Amendment (Resolution of Status Visa
Additional Cohort) Delegation (ADMIN 24/006) 2024 at
Attachment A.
Minister for Home Affairs, Minister for Immigration and
Multicultural Affairs, Minister for Cyber Security
Signature………………………………………………
Date:……/……./2024
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7. In
Love, a majority of the High Court held 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) is not an ‘alien’ within the meaning of paragraph 51(xix) of the
Constitution. Such persons fall largely outside the scope of the aliens power; critically, the
High Court found that a non-citizen non-alien cannot be detained or removed from Australia
under the
Migration Act 1958 (the Migration Act).
8. For a person to qualify for this permanent visa pathway, the circumstance specified by
subregulation 2.07AQ(3A) of the Migration Regulations must exist for the person. This
provision states that the circumstance exists if the Minister has issued a certificate stating
that, by reason of the High Court’s decision in
Love:
a person in the migration zone has been released from, has not been taken into, or
could not be taken into immigration detention; or
for a person outside of the migration zone—that the Minister is satisfied that the
person could not be detained under section 189 of the Migration Act
if the person was
in the migration zone.
9. s. 47C(1)
10. s. 42(1)
11. This delegated power will be restricted to SES in Immigration Policy Division and Immigration
Compliance Division within the Immigration Group, as well as the SES Band 3 (Deputy
Secretary) position holder responsible for Immigration Group.
Consultation – internal
12. s. 42(1)
13. s. 42(1)
14. s. 47C(1)
Consultation – Secretary / Associate Secretary Immigration / ABF Commissioner
15. s. 47C(1)
16. s. 47C(1)
17. s. 47C(1)
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Client service implications
18. s. 47C(1)
Risks and Sensitivities
19. If ADMIN 24/006 is not signed, the power to certify a person as being affected by the High
Court’s decision in
Love will remain available only to you as the Minister to exercise. s. 47E(d)
s. 47E(d)
20. The power under sub-regulation 2.07AQ(3A) would only be delegated to SES officers in
Immigration Group. This approach would appropriately constrain the delegation to senior
officers in the relevant parts of the Department, with appropriate skills, knowledge and
experience.
Financial/systems/legal/deregulation/media implications
21. There will be no financial impact as a result of the proposed delegation of your powers.
22. s. 47C(1)
23. s. 47C(1)
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OFFICIAL: Sensitive Legal privilege
Attachments
Attachment A
Home Affairs Legislation (Minister—Decision-making powers for Immigration
Group and National Security and Resilience Group) Amendment (Resolution of
Status Visa Additional Cohort) Delegation (ADMIN 24/006) 2024
Attachment B
Home Affairs Legislation (Minister—Decision-making powers for Immigration
Group and National Security and Resilience Group) Delegation and
Authorisation 2021 (ADMIN 21/051)
Authorising Officer
Cleared by:
Jeremy Wolter
A/g Assistant Secretary
Legislation Branch
Date: 06/08/2024
Mob: s. 22(1)(a)(ii)
Contact Officer: Jeremy Wolter, Acting Assistant Secretary, Legislation Branch, Mob: s. 22(1)(a)(ii)
CC
Assistant Minister for Immigration
Assistant Minister for Citizenship and Multicultural Affairs
Secretary
Associate Secretary Immigration
Group Manager Legal
Group Manager Immigration Policy
First Assistant Secretary Immigration Policy
First Assistant Secretary Immigration Compliance
Assistant Secretary Compliance and Community Protection Policy
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