Migration Act 1958 - Determination under section 85 - Granting of Parent and Other Family Visas in 2013/2014 Financial Year - June 2013

Overview

The Migration Act 1958, enacted by the Parliament of Australia, was introduced to regulate the entry and stay of non-citizens in Australia. In 2013, the Act was supplemented by a legislative instrument to address the need for managing the number of family visas granted annually. This particular instrument, F2013L01168, sets the maximum number of Parent and Other Family visas that could be granted for the financial year from 1 July 2013 to 30 June 2014. Specifically, the instrument caps the Parent visa category at 2,295 and the Other Family visa category at 595, aligning with the Migration Planning levels for that period. The objective of this legislative instrument is to ensure that the number of visas granted does not exceed the set limits, thus maintaining control over immigration numbers and managing the impact on Australia's immigration program.

Scope and Application

The Migration Act 1958, as amended by the Legislative Instrument IMMI 13/071, specifies the maximum number of Parent and Other Family visas that can be granted in the 2013/2014 financial year. This legislation applies to all applicants seeking Parent (Migrant) or Aged Parent (Residence) visas, as well as Other Family (Migrant) or Other Family (Residence) visas, including those who have applied before the implementation of the cap. The legislation sets the cap for Parent visas at 2,295 and for Other Family visas at 595, encompassing both allocated Migration Program visas and estimated grants to New Zealand citizens. The instrument is exempt from disallowance and does not require a Human Rights Statement of Compatibility. While the instrument does not mandate a Regulatory Impact Statement, consultation about the size and composition of the Migration Program is an annual activity undertaken by the Department of Immigration and Citizenship. This legislative instrument, effective from 1 July 2013, also incorporates provisions for circumstances where the established limit does not prevent the grant of a visa.

Key Provisions

Section 85 of the Migration Act 1958 allows the Minister to set a maximum number of visas that can be granted in any given financial year, a mechanism that was used in this case to cap the number of Parent (Migrant) (Class AX), Aged Parent (Residence) (Class BP), Other Family (Migrant) (Class BO) and Other Family (Residence) (Class BU) visas for the period from 1 July 2013 to 30 June 2014 (section 1). The aim of this legislative instrument, as stated in section 2, is to establish these caps, with a specific focus on Parent visas at 2295 and Other Family visas at 595. The operation of these caps is further clarified in section 3, which states that once the number of visas granted reaches the predetermined maximum, no more visas of that class can be granted for the remainder of that financial year. The obligations imposed by this Act on the relevant parties, primarily the Department of Immigration and Citizenship, include ensuring that the caps are adhered to, and no more visas are granted once the limits have been reached (section 3). The Act also mandates that the instrument applies to all applicants who have applied for a Parent or Other Family category visa, including those who applied prior to the implementation of the cap (section 5). Additionally, the caps include the number of visas allocated within the Migration Program and the estimated number of visa grants to New Zealand citizens (section 6). This instrument, IMMI 13/071, commenced on 1 July 2013, as stated in section 11. In terms of consequences for non-compliance, Section 86 of the Act stipulates that once the maximum number of visas of a class or classes that may be granted in a financial year is reached, no more visas of that class or classes may be granted for the remainder of the year. However, exceptions are provided for under Sections 87 and 87A of the Act, which outline circumstances where the limit does not prevent the grant of a visa (section 4). Any breaches of these provisions could result in legal action, although the specific civil or criminal penalties are not detailed in the explanatory statement. It is important to note that this instrument is exempt from disallowance under section 44 of the Legislative Instruments Act 2003, and a Human Rights Statement of Compatibility is not required (section 8). Furthermore, a Regulatory Impact Statement is not required as advised by the Office of Best Practice Regulation (section 9).