Migration Act 1958 Direction under section 499 Order for Consideration or Disposal of Applications for Visas under section 91 of the Migration Act 1958 (Direction No. 27 of 2001) (Cth)

DIRECTION NO. 27

MIGRATION ACT 1958

DIRECTION UNDER SECTION 499

Order for Consideration or Disposal of Applications for Visas under Section 91 of the Migration Act 1958

WHEREAS:

Section 91 of the Migration Act 1958 (the Act) empowers the Minister for Immigration and Multicultural and Indigenous Affairs, if a section 85 determination (of the maximum number of visas that may be granted in a financial year) applies or has applied, to consider or, subject to section 86, dispose of outstanding and further applications for visas in such order as he or she considers appropriate.

Section 86 provides that if there is a section 85 determination for a visa class or classes (i.e. a cap) and the number of visas of the class or classes granted in the financial year reached that maximum number, no more visas of the class or classes may be granted in the financial year.

Sections 87, 87A and 88 affect the operation of section 86 as follows:

·Section 87 provides that section 86 does not prevent the grant of a visa to a person who applied for it on the ground that he or she is the spouse, or dependent child of an Australian citizen or permanent resident or a person who is usually resident in Australia and whose continued presence in
Australia is not subject to a limitation as to time imposed by law;

·Section 87A provides that section 86 does not prevent the grant of a visa to a person where:

-           that person has been affected by section 86 in a previous financial year,

-           that person has subsequently been requested to meet health or character requirements,

-           that person has met those requirements but not before section 86 has again taken effect, and

-           the Minister is satisfied that the person was unable to satisfy the health or character requirements before the operation of section 86 for a second time because of circumstances beyond the person's control;

·Section 88 provides that section 86's prevention of a visa grant does not prevent any other action related to the application for it.

Each year the Government sets planning levels for the various categories of the Migration Program. The Minister's power under section 85 of the Act to limit the number of visas that may be granted in particular classes or subclasses may be used to ensure that planning levels are not exceeded and that the Program is delivered in line with the overall size and composition set by Government.

High levels of demand in some classes where places under the Migration Program are limited have created a need for managing the grant of visas in these classes in an orderly and equitable fashion. This is particularly the case in classes where there are numbers of applicants who have been affected by section 86 of the Act in a previous Program year.

Decision-makers having powers under the Act to consider visa applications have powers under section 91 to consider and dispose of applications for visas in such order as they consider appropriate. This Direction provides guidance on the order of consideration or disposal of applications for which there has been a section 85 determination (ie. a cap) under section 91 of the Act. There is a separate Direction under section 51 of the Act, which provides guidance on the order of consideration of applications under the Family Stream.

It is the Government’s view that in considering or disposing of applications under section 91 of the Act, the highest level of priority should be given to those applications where I exercise my powers of intervention under sections 345, 351 and 417 of the Act and applications made by persons on the grounds of being an orphan relative. It is the Government’s intention that these applications should not be placed in a queue or assigned a queue date, and consideration should be given to processing these cases ahead of other applications which have been assigned a queue date (as discussed below).

In relation to all other applications, it is the Government’s intention that these applications should be placed in a queue and given a queue date. The  “queue date” is an administrative mechanism established by the Government in order to establish a chronological order for applications within the queue. The queue date is usually the date on which an applicant met the last of the criteria prescribed for the relevant subclass of visa, with limited exceptions. It is recorded in relevant departmental systems and applicants are advised of the date assigned to their application.

It is the Government’s view that in considering or disposing of applications under section 91 of the Act, consideration be given to processing applications in accordance with their queue date. That is, applications with earlier queue dates should be processed before applications with later queue dates. However, in assigning queue dates, due regard should also be given to the order of priority for certain applications as set out below.

It is the Government’s view that a high priority in assigning queue dates be given to cases that are remitted following successful review applications through the merits review tribunals and or the courts.

In respect of those review cases that reach the stage where they can be granted a queue date in a class or subclass in which a cap is in place, consideration should be given to assigning them the most advantageous queue date available at the time all relevant requirements are met.

However, where the use of the most advantageous queue date available would result in such a date preceding the date of the primary decision to refuse the application, consideration should be given to using the date of the primary decision as the assigned queue date.

The next order of priority in assigning the next most advantageous queue date available at the time all relevant requirements are met should then be given to applications made by persons on the grounds of being a carer or special need relative (prior to 1 December 1998 the equivalent of the carer ground was the special need relative ground).

Subsection 499(1) of the Act empowers the Minister for Immigration and Multicultural and Indigenous Affairs to give to a person or body having functions or powers under the Act written directions not inconsistent with the Act or regulations, in accordance with which the person or body shall perform those functions and exercise those powers.

NOW:

I, Philip Ruddock, Minister for Immigration and Multicultural and Indigenous Affairs, acting under section 499 of the Migration Act 1958 (the Act), revoke Direction No. 24, given on 9 May 2001, and give the following direction:

1.      This Direction may be cited as Direction No. 27.

2. This Direction is made with respect to the exercise of the power under section 91 of the Act to consider and dispose of applications that are affected by sections 85 and 86 of the Act.

3. In considering the exercise of the power under section 91 of the Act, decision-makers are to have due regard to the objects and purposes of the Government's policy intentions in relation to the size and composition of the Migration (non-Humanitarian) Program.

4. It is the Government’s view that, in considering the order for considering or disposing of applications under section 91 of the Act, persons or bodies having powers under the Act should have due regard to the following order of precedence:

·those applications where I exercise my powers of intervention under sections 345, 351 and 417 of the Act; and

·those applications made by persons on the grounds of being an orphan relative. These applications should be outside the queue process; then

·all other applications in queue date order. That is, those applications with earlier queue dates should be considered before those applications with later queue dates.

5.      Due regard should be given to the Government’s view that those applications which should be placed in a queue, should be assigned a queue date. The queue date is usually the date on which the applicant meets the last of the criteria prescribed for the relevant subclass of visa, with the following exceptions:

·Preferential/Other Family applicants – payment of the Assurance of Support bond and the second instalment of the Visa Application Charge or the Migrant Health Services Charge where these apply; and 

·Parents – Assurance of Support requirements and payment of the second instalment of the Visa Application Charge or the Migrant Health Services Charge.

6.      It is the Government’s view that in assigning queue dates, due consideration should be given to placing certain applicants in the queue in line with the procedures outlined in the preamble to this Direction, and reflecting the following order of priority:

·cases remitted following review from a merits review tribunal or the courts;

·Carers or special need relatives (prior to 1 December 1998 the equivalent of the carer ground was the special need relative ground);

·all other cases in chronological order.

7. In considering or disposing of applications under s.91 of the Act, it may be necessary for decision makers to request applicants to meet certain outstanding requirements set out in Schedule 2 of the Regulations. These may include:

·lodgement of the Assurance of Support bond;

·payment of the Migrant Health Services Charge or second instalment of the Visa Application Charge;

·health or character clearances where these have expired;

·other requirements (eg sponsorship renewal) in some cases.

8.Assessments of these outstanding requirements will generally be undertaken in a context where there are high levels of demand for a finite number of visa places and a further determination under section 85 has been or will be made. The order of precedence outlined in paragraph 4 should not be held to guarantee a decision to grant a visa to a particular applicant. Notwithstanding this order of precedence, it is the Government's view that, orderly management of the Program requires that the reaching of a cap (ie the reaching of the number of visa grants specified in a section 85 Determination) should not be unduly deferred due to individual applicants being unable to meet particular requirements.

9.      In this context decision-makers should, subject to the Act and regulations, therefore have due regard to advising applicants who are asked to meet additional requirements concerning:

·an appropriate time frame within which certain steps should be undertaken having regard to the likelihood that a section 85 cap will come into effect within a certain broad time frame;

·the possible consequences of their inability to meet requirements within that time frame - notably that they may again be affected by section 86 of the Act.

Dated this 31^st day of December 2001

Philip Ruddock

Minister for Immigration and Multicultural and Indigenous Affairs