EXPLANATORY STATEMENT
Migration Act 1958
GRANTING OF PARENT AND OTHER FAMILY VISAS IN 2012/2013 FINANCIAL YEAR
(Section 85)
1. Section 85 of the Act provides that the Minister may determine by instrument in writing the maximum number of the visas of a specified class or the visas of specified classes that may be granted in a specified financial year.
2. The purpose of this Legislative Instrument is to determine the maximum number of visas that may be granted in the financial year 1 July 2012 to 30 June 2013 for:
- Aged Parent (Class BP) and Parent (Class AX); and
- Other Family (Migrant)(Class BO) and Other Family (Residence)(Class BU).
3. Section 86 of the Act provides that if there is a determination of the maximum number of visas of a class or classes that may be granted in a financial year; and the number of visas of the class or classes granted in the year reaches that maximum number; no more visas of the class or classes may be granted in the year.
4. Section 87 and section 87A of the Act provide for the circumstances where the limit made under section 85 does not prevent the grant of a visa.
5. This Instrument applies to all applicants who have applied for a Parent and Other Family category visa. This includes applicants who have applied before the implementation of this cap.
6. The instrument operates to cap all relevant visa classes to include the anticipated number of visa grants. The caps include the number of visas allocated within the Migration Program and the estimated number of visa grants to New Zealand citizens.
7. The purpose of the instrument is to:
- increase the cap for the Parent visa category to 2210; and,
- increase the cap for the Other Family visa category to 1320.
8. Under section 44 of the Legislative Instruments Act 2003 the Instrument is exempt from disallowance and therefore a Human Rights Statement of Compatibility is not required.
9. The Office of Best Practice Regulation has been consulted and has advised that a Regulatory Impact Statement is not required (OBPR reference 13879).
10. Consultation about the size and composition of the Migration Program is undertaken each year by the Department of Immigration and Citizenship. The limits established by this legislative Instrument are consistent with the Migration Planning levels for 2012-13.
11. The Instrument, IMMI 12/071, commences on 1 July 2012.
Overview
The Migration Act 1958, enacted by the Parliament of Australia, governs various aspects of immigration to Australia, including the granting of visas. To address the need for managing the number of visas granted in a financial year, the Act includes provisions that allow the Minister to determine the maximum number of visas that can be issued. This is particularly relevant for family-related visas, ensuring that immigration numbers are controlled and managed effectively. In 2012, the Migration Act was updated through Legislative Instrument F2012L01307 to specify the maximum number of Parent and Other Family visas that could be granted in the 2012/2013 financial year. This instrument aimed to increase the cap for Parent visas to 2210 and for Other Family visas to 1320, aligning with the Migration Program's planning levels for that period. The legislative instrument operates to enforce these caps, ensuring that once the maximum number of visas is reached, no further visas of those classes can be granted for the year.
Scope and Application
The Migration Act 1958, as applied by the Legislative Instrument IMMI 12/071, pertains to the regulation of specific visa categories within Australia’s immigration framework for the 2012/2013 financial year. This instrument sets caps on the maximum number of Parent and Other Family visas that can be granted, including the Aged Parent (Class BP) and Parent (Class AX) visas, as well as the Other Family (Migrant) (Class BO) and Other Family (Residence) (Class BU) visas. This legislative instrument applies to all applicants who have applied for these visa categories, irrespective of the timing of their applications relative to the instrument's implementation. The caps established by this instrument encompass all relevant visa classes, including those allocated within the Migration Program and those granted to New Zealand citizens. Importantly, if the number of visas granted reaches the maximum number set by this instrument, no further visas of that class can be granted for that financial year, unless specific exceptions under Sections 87 and 87A of the Act apply. The instrument is exempt from disallowance under section 44 of the Legislative Instruments Act 2003, and consultation regarding its limits has been conducted annually by the Department of Immigration and Citizenship, aligning with the Migration Planning levels for 2012-13.
Key Provisions
Section 85 of the Migration Act 1958 allows the Minister to set the maximum number of specific visas that can be granted within a financial year, a provision that is put into practice through this legislative instrument (F2012L01307). This particular instrument establishes the limits for the financial year 1 July 2012 to 30 June 2013 for Aged Parent (Class BP), Parent (Class AX), Other Family (Migrant) (Class BO), and Other Family (Residence) (Class BU) visas. The primary aim is to cap the number of these visas that can be granted to ensure that the immigration program remains within planned levels.
The obligations imposed by this Act are straightforward but significant. The Minister is tasked with determining the maximum number of visas that can be issued in a financial year for the specified categories. Once the number of visas granted reaches the determined maximum, no additional visas of those categories can be issued for the remainder of the financial year (Section 86). This cap is intended to manage the flow of immigration effectively and ensure that the numbers align with national planning levels.
There are specific circumstances under Sections 87 and 87A of the Act where the established limits do not prevent the grant of a visa. This flexibility ensures that exceptional cases can still be considered, maintaining the Act's balance between control and humanitarian considerations. The instrument applies to all applicants who have applied for a Parent or Other Family category visa, including those who applied before the implementation of the cap.
Failure to adhere to the visa limits set by this Act could have legal ramifications. While the specific penalties for breaches are not detailed within this explanatory statement, breaches of immigration legislation generally can lead to civil or criminal penalties. These could include fines, imprisonment, or both, depending on the severity and nature of the breach. The consequences underscore the importance of complying with the visa limits set forth in the Act.