15. Migration

​A.  Overview

The early surge in cases of COVID-19 was largely driven by persons entering Australia, having contracted the disease elsewhere.
 
In response to the threat posed by COVID-19, travel into and out of Australia, as well as many other countries, has been banned completely or (in limited cases) very tightly restricted. This has necessitated a range of legislative measures and responses.
 
It has affected the ability of Australians to depart and return to Australia, but has also affected the ability of non-citizens to depart from or enter Australia, and has changed the conditions in other countries to which a person might otherwise have been sent. These matters all have an affect on litigation about decisions under the Migration Act 1958 (Cth).

B.  Legislation

Commonwealth:
Made under the Migration Act 1958 (Cth):  
Made under the Retirement Savings Accounts Act 1997 (Cth):  
Made under the Superannuation Industry (Supervision) Act 1993 (Cth):
C.  Case law

The uncertain period of detention a person would face, because of COVID-19 restrictions, if their visa is cancelled, may weigh (slightly) against exercising the discretion to cancel a visa: Hood and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1123, [170].  
 
COVID-19 may be relevant to a decision as to whether to revoke a mandatory cancellation of a person’s visa. The conditions created by the pandemic may weigh in favour of revocation in the following respects:
The possibility of a person whose visa has been cancelled on character grounds remaining in indefinite detention may not be a relevant consideration bearing on the exercise of discretion to revoke the cancellation, at least where the person is detained in a prison (as opposed to immigration detention): RTTW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1154, [149]-[156].

Although a person may face immediate difficulties securing employment if returned to another country during the pandemic, those difficulties may be no different to those faced by a person seeking employment in Australia: Li (Migration) [2020] AATA 1206, [28] (considering the employment prospects of an applicant if returned to China).

A fear of coronavirus does not satisfy the requirements for a person to be considered a refugee (1701799 (Refugee) [2020] AATA 932, [46]) and the risk to a person of being infected with COVID-19 as a result of being returned to a country with a more severe outbreak than Australia may not engage Australia’s non-refoulement obligations: FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294, [161], [287], [298]-[300]. It should be noted that the AAT’s finding on this issue in FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294 turned to a significant degree on the AAT’s view, as at 25 February 2020, that the outbreak in China (where it was proposed to remove the applicant) was contained and that the Chinese Government was taking drastic steps to reduce the spread of the virus (see particularly [298]). Nor was reliance on the risk of contracting COVID-19, and suffering resultant harm, in Greece sufficient to confer refugee status in 1820805 (Refugee) [2020] AATA 895 at [71]-[72], where there was no evidence that the Greek health system could not cope with the number of persons infected.
 
Even where an applicant for a visa is unsuccessful, travel restrictions may make it effectively impossible to return them to their country of origin — in such circumstances, it may be appropriate for the person’s bridging visa to be extended: see, e.g., KC v Minister for Immigration [2020] FCCA 649, [32] (although the Court noted that extension in that case was outside the scope of the proceeding and was entirely a matter for the Minister). The prospect of an applicant facing a prolonged period in detention because of difficulties returning them during the pandemic may also weigh against cancellation of a visa on character grounds: CKQV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 927, [315].  Similarly, the prospect of an applicant facing an elevated risk of contracting COVID-19 if returned to a particular society where the disease is still spreading may be need to be weighed in determining where the balance of convenience lies for the purposes of an application for interlocutory injunctive relief pending judicial review: CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825, [79].

The AAT may also consider the impact of the pandemic on an applicant and their relatives in determining whether to exercise its discretion to not refuse a bridging visa: XMTQ and Minister for Home Affairs [2020] AATA 986, [56], [83], [89], [93], [103], [123], [124], [128], [130], [139], [140], [141].

The importance of a particular employee – and visa applicant – to an Australian business may justify waiver, under PIC 4020(4)(b), of the Public Interest Criterion in PIC 4020(1): Migration Regulations 1994 (Cth), Sch 4, Pt 1.  In Singh (Migration) [2020] AATA 1178, the AAT was satisfied that the value of a senior and experienced chef to a café struggling with the financial impact of the COVID-19 pandemic constituted “compelling or compassionate circumstances affecting the interests of identifiable Australian citizens” for the purposes of the test for waiver in PIC 4020(4)(b) ([67]-[79]).

In an application under s 476 of the Migration Act 1958 (Cth) for review of a decision by the AAT to affirm the refusal of a protection visa, where the COVID-19 pandemic post-dated the AAT's decision, the pandemic is not a basis on which jurisdictional error in the AAT's decision may be contemplated: CWK17 v Minister for Immigration [2020] FCCA 1605, [20].

D.  Further resources