EXPLANATORY STATEMENT
Issued by authority of the Minister for Multicultural Affairs
Immigration (Education) Act 1971
Immigration (Education) (Classes of Temporary Visas Eligible for English Courses) Determination 2026
The instrument, departmental reference LIN 25/087, is made under subsections 4(2) and 4A(2) of the Immigration (Education) Act 1971 (the IE Act).
The instrument repeals and replaces Immigration (Education) (Specification of temporary visas) Instrument (LIN 21/013) 2021 in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (the Acts Interpretation Act). That subsection provides that a power to make a legislative instrument includes a power to amend or repeal that instrument in the same manner, and subject to the same conditions, as the power to make the instrument.
The instrument commences on the day after it is registered on the Federal register of Legislation. It is a legislative instrument for the purposes of the Legislation Act 2003 (the Legislation Act).
Purpose
The instrument operates to specify classes of temporary visas for the purposes of subparagraphs 4(1)(b)(ii) and 4A(1)(a)(ii) of the IE Act. The IE Act sets out a scheme for tuition in approved English courses to eligible migrants, known as the Adult Migrant English Program (AMEP). Section 4 of the Act enables the Minister to provide or arrange for the provision of English courses to eligible persons (see paragraph 4(1)(a)), or persons who are outside Australia and hold, or have applied for, either a permanent visa or a temporary visa of a class specified in a legislative instrument made by the Minister (see subparagraph 4(1)(b)(ii)). Section 4A provides when a person is considered ‘eligible’, which includes a person who is in Australia and holds a temporary visa of a class specified in a legislative instrument made by the Minister (see subparagraph 4A(1)(a)(ii)).
The instrument specifies the classes of temporary visas that a person must hold, or have applied for, to be eligible for English courses. Holders of these specified temporary visas are eligible for the AMEP, if they meet all other eligibility criteria as specified in the IE Act.
LIN 25/087 repeals and replaces the previous instrument Immigration (Education) (Specification of temporary visas) Instrument (LIN 21/013) 2021 (LIN 21/013). LIN 25/087 makes a technical change to combine the two tables that were previously specified in sections 5 and 6 of LIN 21/013. This means that all temporary visa classes are listed together, irrespective of whether that visa has been repealed from the Migration Regulations 1994 (the Migration Regulations) before the commencement of the instrument. This prevents confusion where the visa has been repealed, but a person continues to hold that visa, or in certain circumstances, where a person continues to be eligible to make a valid application for that visa. This ensures these persons continue to have access to and are eligible for the AMEP.
LIN 25/087 provides clarity in relation to eligibility and related arrangements under the AMEP to support migrants with low English proficiency to learn the national language, facilitating social cohesion and boosting the education and potential employment prospects of participating migrants.
Consultation
No external consultation was considered necessary for this instrument. This is because the instrument does not alter existing arrangements, and the changes are technical in nature. The instrument does not affect existing access by visa holders to the AMEP.
Details of the instrument
Section 1 sets out the name of the instrument.
Section 2 provides for the commencement of the instrument on the day after it is registered on the Federal Register of Legislation.
Section 3 provides the instrument is made under subsections 4(2) and 4A(2) of the Immigration (Education) Act 1971.
Section 4 provides definitions of terms used in the instrument.
Section 5 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Section 6 specifies the classes of temporary visas for the purposes of subparagraphs 4(1)(b)(ii) and 4A(1)(a)(ii) of the Act. Subsection 6(1) sets out a table specifying temporary visas by subclass and class as categorised by the Migration Regulations. Subsection 6(2) makes it clear that a visa may still be specified regardless of whether that visa has been repealed from the Migration Regulations. (A person may continue to hold a visa that has subsequently been repealed from the Migration Regulations.) The effect of this provision is that a person who is in Australia and holds a specified visa, or is outside Australia and holds or has applied for a specified visa, is eligible to access the AMEP.
Together with section 5, item 1 of Schedule 1 operates to repeal the Immigration (Education) (Specification of temporary visas) Instrument (LIN 21/013) 2021.
Parliamentary scrutiny etc.
The instrument is subject to parliamentary scrutiny and disallowance under section 42 of the Legislation Act. A Statement of Compatibility with Human Rights has been prepared in relation to the instrument, and provides that the instrument is compatible with human rights because it promotes the human rights of individuals. The Statement is included at Attachment A to this explanatory statement.
The instrument was made by the Minister for Multicultural Affairs under subsections 4(2) and 4A(2) of the IE Act.
Attachment A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Immigration (Education) (Classes of Temporary Visas Eligible for English Courses) Determination 2026
This Disallowable Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Disallowable Legislative Instrument
The Immigration (Education) Act 1971 (the IE Act) provides for publicly-funded tuition in approved English courses to eligible migrants who do not have vocational English. This is delivered through the Australian Government’s Adult Migrant English Program (AMEP). The AMEP helps eligible migrants learn English skills that will assist them to successfully and confidently participate socially and economically in Australian society. Access is extended to some temporary visa holders as specified in the legislative instrument for this purpose.
This Disallowable Legislative Instrument is made under subsection 4A(2) of the IE Act, which empowers the Minister to specify a class of temporary visa for the purposes of subparagraph 4A(1)(a)(ii) of the IE Act, to access English courses inside Australia. It is also made under subsection 4(2) of the IE Act whereby the Minister may specify a class of temporary visa for the purposes of subparagraph 4(1)(b)(ii) of IE Act, to access English courses outside Australia.
The purpose of this Disallowable Legislative Instrument is to repeal and replace the Immigration (Education) (Specification of temporary visas) Instrument (LIN 21/013) 2021. Whereas LIN 21/013 had two separate lists of AMEP-eligible temporary visas based on whether the visas are active or repealed visas, the new instrument (LIN 25/087) has a single consolidated list of temporary visas that are eligible for the AMEP. LIN 25/087 also reflects that, should any of the listed visa subclasses be repealed from the Migration Regulations 1994, they continue to be specified temporary visas for the purposes of subparagraphs 4(1)(b)(ii) and 4A(1)(a)(ii) of the IE Act. This change simplifies the instrument and negates the need for the instrument to be remade each time a specified visa subclass is repealed.
Holders of a visa that has been repealed from the Migration Regulations 1994 continue to hold that visa as long as the visa remains in effect. Therefore, holders of a specified temporary visa that has been repealed continue to hold an AMEP-eligible visa.
Human rights implications
Right to Education
This Disallowable Legislative Instrument promotes the right to education in Article 13(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which states:
The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.
The Disallowable Legislative Instrument positively engages the right to education in Article 13 of the ICESCR as it provides access to government-funded English language tuition to holders of specified temporary visas.
Conclusion
This Disallowable Legislative Instrument is compatible with human rights because it promotes the human rights of individuals.
The Hon Dr Anne Aly MP
Minister for Multicultural Affairs