EXPLANATORY STATEMENT
Migration Act 1958
- This
Notice Instrument is made under regulation 1.17 of the Migration Regulations 1994 (‘the Regulations’) and section 85 of the Migration Act 1958 (‘the Act’).
2. Regulation 1.17 of the Regulations provides that the Minister may, by notice published in the Gazette, specify matters required by individual provisions of the Regulations to be specified for the purpose of those provisions.
2.3. Section 85 of the Act provides allows the Minister the power to determine by Gazette Notice, 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.
4. The purpose of the Instrument is to impose a cap on the number of visa grants for the Non-Contributory Parent Category (‘the Parent Category’) over the 2004-2005 financial year. The Parent Category consists of 2 visa classes – the Class AX Parent (Migrant) visa ‘(the Parent (Migrant) class visa’) and the Class BP Aged Parent (Residence) visa (‘the Aged Parent (Residence) class visa’). A cap of 1000 visas is placed on the Parent Category for the 2004-2005 financial year. Relevantly, this Instrument imposes a maximum number of 320 Aged Parent (Residence) class visas that may be granted for the 2004-2005 financial year. A separate Instrument imposes a cap of 680 Parent (Migrant) class visas that may be granted over the same financial year.
5. The Aged Parent (Residence) class visa is subject to visa capping due to high demand and limited number of places available. Due to the high demand and limited number of places, the parent category is subject to capping and queuing. Once This means that once the limit set by the Government for this visa classthe Aged Parent (Residence) class visa for thea Migration Program Yearspecific financial year has been reached, no further visas can be granted in that Program Yearfinancial year. Once a cap is reached, aApplicants are wait in a queued until a place becomes available. There are approximately 20,000 people waiting for a decision on a Parent (Migrant) or an Aged Parent (Residence) class visa application.
6. The Queuing mechanism is a method of managing the parent caseload so that the visa places available under the parent program are allocated in an orderly way until the numeric target or cap is met. Queuing eliminates unnecessary requests for the payment of second instalments of visa application charges and bonds. Applicants know where they stand well in advance and it is more precise. The queue is a continuum used both before and after the cap is reached.
7. The Contributory Parent Category was introduced in 2003 to enable the expansion of the parent migration program, thus addressing the demand in the pre-existing Parent Category while minimising the potential cost to the Commonwealth budget of an increase in Australia’s aged population. The Contributory Parent Category for 2004-2005 was not to exceed 3, 500 places.
86. The Instrument operates to specify the number of Aged Parent (Residence) class visas that may be granted for the 2004-2005 financial year.
There are no documents incorporated in the instrument by reference.
967. This Instrument does not have a direct, or a substantial indirect, effect on business or restrict competition (subsection 17(1) of the Legislative Instruments Act 2003 refers). As such, consultation was not undertaken.
108. The Instrument commences on the first moment of the day following the day when the Instrument is registered (the default commencement, paragraph 12(1)(d) of the Legislative Instruments Act 2003 refers).
Internal Consultation was undertaken with Migration Program Section, the Legislative Instruments Unit, State and Territory offices and the Perth Offshore Processing Centre before the instrument was made.
7. The instrument commences on the day of publication in the Gazette.
Overview
The Migration Regulations 1994, pursuant to section 85 of the Migration Act 1958, were used to enact this legislative instrument in order to impose a cap on the number of visa grants for the Non-Contributory Parent Category for the 2004-2005 financial year. This legislation addresses the problem of high demand and limited places available for the Parent Category, specifically for the Class AX Parent (Migrant) visa and the Class BP Aged Parent (Residence) visa. The objective is to manage the parent migration program in an orderly way until the numeric target or cap is met, thereby eliminating unnecessary requests for the payment of second instalments of visa application charges and bonds. The instrument sets a maximum number of 320 Aged Parent (Residence) class visas that may be granted for the 2004-2005 financial year, with a separate instrument imposing a cap of 680 Parent (Migrant) class visas for the same financial year. Once the cap is reached, applicants are placed in a queue until a place becomes available. This instrument does not have a direct or substantial indirect effect on business or restrict competition, and hence, consultation was not undertaken. It commences on the day of publication in the Gazette.
Scope and Application
The F2005L01287 Notice Instrument, made under the Migration Act 1958 and the Migration Regulations 1994, imposes a cap on the number of visa grants for the Non-Contributory Parent Category for the 2004-2005 financial year, specifically targeting the Class AX Parent (Migrant) visa and the Class BP Aged Parent (Residence) visa. This legislation applies to the Minister for Immigration who has the power to determine the maximum number of visas that may be granted within a specified financial year. The cap for the Parent Category for this period is set at 1,000 visas, with a specific limit of 320 Aged Parent (Residence) class visas and 680 Parent (Migrant) class visas. The geographic reach of this legislation is national, as it pertains to the overall Australian immigration program. The legislation does not specify any exclusions, exemptions, or thresholds beyond the numerical caps. The Notice Instrument also introduces a queuing mechanism to manage the allocation of visas, ensuring that applicants are placed in a queue once the cap is reached and that visa places are allocated in an orderly fashion. This mechanism is designed to prevent unnecessary payment requests and to provide clarity to applicants regarding their position in the queue. The legislation is intended to address high demand and limited places within the parent migration program while minimising the potential cost to the Commonwealth budget.
Key Provisions
The F2005L01287 Notice Instrument under the Migration Act 1958 specifies the number of visas that can be granted for the 2004-2005 financial year, particularly focusing on the Non-Contributory Parent Category. This category includes the Class AX Parent (Migrant) visa and the Class BP Aged Parent (Residence) visa. Under section 85 of the Act, the Minister is empowered to determine the maximum number of visas that may be granted for a specific financial year, and in this case, the Minister has set a cap of 1000 visas for the Parent Category. Specifically, for the Aged Parent (Residence) class visa, the cap is set at 320 visas for the 2004-2005 financial year.
This legislative instrument imposes clear obligations on the parties involved. The primary obligation is the adherence to the specified caps on visa grants. Once the specified number of visas for the Aged Parent (Residence) class visa is reached, no further visas can be granted for that financial year. This cap ensures that the demand for these visas is managed effectively and equitably. The queuing mechanism is implemented to handle the high demand and limited number of available visas, ensuring that applicants are aware of their position in the queue and that the process remains orderly and transparent.
Breaching the provisions set out in this Instrument can lead to significant legal consequences. While the explanatory statement does not detail specific offences or penalties, it is reasonable to infer that violations of visa caps or improper queuing could result in legal action under the Migration Act. Such breaches might include administrative penalties, revocation of visas, or other enforcement actions taken by the Department of Home Affairs. The penalties for non-compliance could vary, but they are likely to be severe given the statutory framework within which the Act operates.
The Notice Instrument is designed to ensure that the migration program is managed efficiently and that the demand for visas is met within the constraints of available resources. The specified caps and queuing mechanism aim to maintain an orderly and equitable process for applicants. By setting clear limits on the number of visas that can be granted, the Minister ensures that the migration program remains sustainable and that the rights of all applicants are respected.