Migration Act 1958 - Determination under section 85 - Granting of Other Family Visas in 2010/2011 Financial Year

Overview

The Migration Act 1958 was enacted to provide a comprehensive framework for the regulation of migration to, from, and within Australia. One of its key provisions is section 85, which empowers the Minister to set the maximum number of visas of a specified class that can be granted in a financial year. This is intended to manage and control the flow of migrants into the country, ensuring that immigration policies are implemented effectively and efficiently. The Explanatory Statement for F2011L00144, issued under section 85 of the Act, specifies the maximum number of Other Family (Migrant) (Class BO) and Other Family (Residence) (Class BU) visas that can be granted in the financial year from 1 July 2010 to 30 June 2011, setting this limit at 750. This measure ensures that the number of visas granted does not exceed the predetermined maximum, thereby maintaining control over the immigration process and supporting the broader policy objectives of the Act.

Scope and Application

The Instrument F2011L00144, made under the Migration Act 1958, pertains specifically to the granting of Other Family visas, both migrant (Class BO) and residence (Class BU), for the 2010/2011 financial year. This legislation applies to applicants for these visas, including those who are outside Australia and those within Australia who have already submitted a valid application for an Other Family (Residence) (Class BU) visa. The Act sets a cap of 750 visas for these categories, ensuring that no more visas can be granted once this limit is reached. The regulation also outlines that certain circumstances, as specified in sections 87 and 87A of the Act, may allow for exceptions to this limit. The scope of this legislation is confined to the visa categories mentioned and does not extend to other types of visas or immigration-related matters. Once registered on the Federal Register of Legislative Instruments, the instrument will come into effect, governing the number of visas granted within the specified financial year.

Key Provisions

The main operative sections of this legislation are sections 85, 86, and 87 of the Migration Act 1958 (referred to as "the Act"). Section 85 (1) allows the Minister to determine by written instrument the maximum number of visas of a specified class or classes that can be granted in a specified financial year. Section 86 states that once the maximum number of visas for a class has been granted in a financial year, no more visas of that class can be granted in that year. Section 87 and 87A provide exceptions to the limitation imposed by section 86 under certain circumstances. Under this legislation, the Minister is required to determine the maximum number of Other Family (Migrant) (Class BO) and Other Family (Residence) (Class BU) visas that can be granted in the financial year 1 July 2010 to 30 June 2011. This determination is made in IMMI 10/067. The Act imposes obligations on the Minister to ensure that the specified maximum number of visas is adhered to and that no more visas can be granted once that number is reached, unless an exception applies under sections 87 or 87A. In accordance with section 86 of the Act, if the maximum number of visas for the Other Family visa category is reached in the financial year, no further visas of that class can be granted for the remainder of that year. Section 87 and 87A of the Act, however, allow for certain exceptions to this limitation, such as where a visa has already been granted but not yet issued, or where there are compassionate or compelling circumstances. There are no specific offences, penalties, or civil/criminal consequences mentioned for breaches of this legislation. However, failure to comply with the maximum number of visas granted in a financial year could result in administrative consequences for the Department of Home Affairs and potential applicants, as no further visas can be granted once the limit is reached.