Migration Act 1958 - Determination of Granting of Protection Class XA Visas in 2013/2014 Financial Year - IMMI 14/026

Overview

The Migration Act 1958, enacted by the Parliament of Australia, addresses the regulation and administration of immigration to Australia. The Act provides mechanisms for the grant of various classes of visas, including protection visas. The Explanatory Statement for the Legislative Instrument F2014L00224, which pertains to the granting of Protection (Class XA) visas in the 2013/2014 financial year, highlights that the Act allows the Minister to determine the maximum number of visas that can be granted in a specified financial year. This instrument was introduced to support the Government's decision to limit the number of permanent Protection visas granted to applicants who lawfully applied onshore under the 2013/2014 Humanitarian Programme to 2750, reflecting an adjustment for temporary protection visas granted in that period. The policy objective is to effectively manage the number of protection visas granted in alignment with the government's humanitarian program objectives. The instrument is exempt from disallowance and does not require a Human Rights Statement of Compatibility, and consultation regarding the program's size and composition is conducted annually by the Department of Immigration and Border Protection.

Scope and Application

The Migration Act 1958, as amended by the instrument F2014L00224, regulates the granting of Protection (Class XA) visas by setting a cap on the number of visas that can be granted within the specified financial year. This legislation applies to all applicants seeking a Protection (Class XA) visa, including those who applied prior to the implementation of the cap. The instrument, which is a legislative response to the Government’s determination for the 2013/2014 financial year, limits the number of such visas to 2773, taking into account the temporary protection visas granted during that period. The Act allows the Minister to set these limits through written instruments, and once the cap is reached, no additional visas can be granted for that year, unless specific circumstances apply under sections 87 and 87A. Notably, the instrument is exempt from disallowance under section 44 of the Legislative Instruments Act 2003, and no Human Rights Statement of Compatibility or Regulatory Impact Statement is required as advised by the Office of Best Practice Regulation.

Key Provisions

The primary operative sections of this legislation revolve around the control and limitation of the number of Protection (Class XA) visas granted in the 2013/2014 financial year. Section 85 (1) empowers the Minister to set a cap on the number of visas that can be granted, while Section 86 (3) stipulates that once the cap is reached, no further visas of that class can be granted in that financial year. The legislative instrument in question, IMMI 14/026, has been introduced to implement this cap, setting it at 2773 Protection (Class XA) visas, which includes temporary protection visas granted in 2013/2014. This cap is applicable to all applicants who have applied for this visa class, regardless of when they submitted their application. The Act imposes several obligations and requirements on the parties and entities it governs. The Minister, under Section 85, has the authority to determine the maximum number of visas that can be granted in a specific financial year. Once this determination is made, the cap becomes legally binding, and no more visas of the specified class can be granted unless the conditions outlined in Sections 87 and 87A are met. Furthermore, the legislative instrument ensures that all applicants for a Protection (Class XA) visa are subject to this cap, ensuring that the government's policy on the maximum number of visas granted is adhered to uniformly. In terms of consequences for breach, the Act does not explicitly outline specific offences or penalties for failing to comply with the visa cap. However, the overarching framework of the Migration Act 1958, which includes provisions for revocation of visas and potential criminal penalties for fraud or other serious breaches, would apply. The legislative instrument itself is exempt from disallowance under Section 44 of the Legislative Instruments Act 2003, meaning that a Human Rights Statement of Compatibility is not required. Additionally, the Office of Best Practice Regulation has determined that a Regulatory Impact Statement is not necessary for this instrument, as indicated in OBPR reference 16700. The commencement of this instrument occurs on the day following its registration on the Federal Register of Legislative Instruments.