Resolution of Status Visa
In 2020, the High Court of Australia handed down a decision in Love v Commonwealth of Australia [2020] HCA 3 (‘Love Case).
This involved two plaintiffs, Mr Love and Mr Thoms. Both were born overseas and neither of them was Australian citizens. Mr Love was a Papua New Guinea (‘PNG’) citizen by birth. Since 1985, he had resided continuously in Australia and had not departed. Mr Love identified as a descendant of the Kamilaroi tribe. His paternal great-grandfather was descended, in significant part, from Aboriginal inhabitants of Australia who lived in Australia before European settlement.
Mr Thoms was born in New Zealand and was a New Zealand citizen by birth. Since 1994, Mr Thoms had permanently resided in Australia and identified as a member of the Gunggari People and was accepted by other Gunggari people as such. The Gungarri People hold common law native title in respect of lands in Queensland’s Maranoa region.
Because neither of the men were citizens of Australia, their lawful presence in Australia depended upon their each holding a valid visa. Both Mr Love and Mr Thoms had types of permanent residence visas which permitted them to indefinitely remain in Australia. Their status as non-citizens, however, made their lawful right to remain in Australia conditional upon the continued validity of each of their permanent residence visas. Both of them were convicted for criminal matters and were given a custodial sentences. Mr Love was handed down 12 months imprisonment and Thoms was given 18 month custodial sentence.
As their custodial sentences were for a period of 12 months or more, their visas were cancelled by a delegate of the Minister for Home Affairs under s 501(3A) of the Migration Act 1958 (Cth), the relevant effect of which is to require the Minister to cancel a person’s visa if the person has been convicted of an offence for which a sentence of imprisonment of 12 months or more is provided. Upon cancellation of their visas the plaintiffs became unlawful non-citizens and liable to be removed from Australia.
The Migration Act and the Australian Citizenship Act 2007 (Cth) (“the Citizenship Act”) are enacted under s 51(xix)3. Both argued that they are outside the purview of those statutes citizens and s 51(xix) because they have a special status as a “non-citizen, non-alien”. They claimed that they had that status because although they were non-citizens they couldn’t be aliens because they were Aboriginal persons.
The High Court decision, by a majority of four judges to three, determined that Aboriginal Australians, described by Brennan J in Mabo v Queensland (No. 2) (‘Mabo’) were not within the reach of the Commonwealth Parliament’s so-called ‘aliens power’ in section 51(xix) of the Constitution.
As a result of this case, Australian Government has made amendments more commonly referred to as the Migration Amendment (Resolution of Status Visa Additional Cohort) Regulations 2023.
It helps people affected by a court case called Love v Commonwealth; Thoms v Commonwealth. These changes allow certain non-citizens who are recognized differently under the law because they’re Aboriginal or Torres Strait Islander to get a permanent visa (Subclass 851 – Resolution of Status). This visa also helps them access government support.
The court said that some people who aren’t citizens or regular non-citizens can’t be detained or removed from Australia under these rules. So, the new regulations create a way for these people to apply for a special visa if they’ve been offered a permanent stay in Australia and meet certain conditions.
The rules for getting this visa are different for the Love-affected group compared to others. They don’t need to meet some criteria like health checks because of their special legal status. This helps them stay in Australia permanently.
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