Migration Act 1958 - Direction under section 499 - Order of Consideration and Disposal of Applications for Visas in the Family Stream under subsection 51(1) of the Migration Act 1958 (Direction No. 32 of 2003)

Administered by Department of Home Affairs

Legislation au F2006B11713 Not in force Legislative Instrument

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MIGRATION ACT 1958

DIRECTION UNDER SECTION 499

 

Order of consideration and disposal of applications for visas in the Family Stream under subsection 51(1) of the Migration Act 1958

 

Direction No: 32

 

WHEREAS:

 

Section 51 of the Migration Act 1958 (the Act) empowers the Minister for Immigration and Multicultural and Indigenous Affairs to consider and dispose of applications for visas in such order as he or she considers appropriate. The fact that an application has not yet been considered or disposed of although an application that was made later has been considered or disposed of does not mean that the consideration or disposal of the earlier application is unreasonably delayed.

 

Section 91 of the Act empowers the Minister for Immigration and Multicultural and Indigenous and Indigenous Affairs, if a section 85 determination (of the number of visas that may be granted in a financial year) applies or has applied, to consider or, subject to section 86, dispose of outstanding and further applications for visas subject to a cap in such order as he or she considers appropriate. Section 86 provides that if there is a section 85 determination for a visa class or classes and the number of visas of the class or classes granted in the financial year reaches that maximum number no more visas of the class or classes may be granted in the financial year. Subsection 87(1) provides that section 86 does not prevent the grant of a visa to a person who applied for it on the ground that he or she is the spouse, or dependent child of an Australian citizen or permanent resident.

 

Persons or bodies having powers under the Act to consider visa applications have powers under sections 51 and 91 to consider and dispose of applications for visas in such order as they consider appropriate.

 

Each year the Government sets planning levels for the various categories of the Migration Program. The categories for which planning levels are set may consist of either a single visa class or subclass specified in the Migration Regulations or several classes or subclasses. A planning level is set for the Family Stream. Applications for visas by persons seeking to migrate or remain in Australia under the Family Stream are made in respect of a specified visa class and the applicant's claims must be considered under all subclasses of the specified visa class.

 

The Family Stream consists of the following visa classes:

 

Child (Migrant) (Class AH)

Child (Residence) (Class BT)

Partner (Migrant) (Class BC)

Partner (Residence) (Class BS)

Partner (Provisional) (Class UF)

Partner (Temporary) (Class UK)

Prospective Marriage (Temporary) (Class TO)

Designated Parent (Migrant) (Class BY)

Designated Parent (Residence) (Class BZ)

Parent (Migrant) (Class AX)

Contributory Parent (Migrant) (Class CA)

Contributory Parent (Temporary) (Class UT)

Aged Parent (Residence) (Class BP)

Contributory Aged Parent (Residence) (Class DG)

Contributory Aged Parent (Temporary) (Class UU)

Special Eligibility (Residence) (Class AO)

Other Family (Migrant) (Class BO)

Other Family (Residence) (Class BU)

 

and unfinalised applications for the following visa classes:

 

Adoption (Migrant) (Class AA) (repealed)

Child (Migrant) (Class AH) (repealed)

Spouse (Migrant) (Class BC) (repealed)

Spouse (Provisional) (Class UF) (repealed)

Prospective Marriage (Temporary) (Class TO) (repealed)

Interdependency (Migrant) (Class BI) (repealed)

Interdependency (Provisional) (Class UG) (repealed)

Preferential Relative (Migrant) (Class AY) (repealed)

Family (Residence) (Class AO) (renamed)

General (Residence) (Class AS) (repealed)

Family of New Zealand Citizen (Class AP) (repealed)

 

Within each class of visa are separate subclasses of visa which set out the grounds on which applicants may be granted a visa. Within the Family Stream applicants may apply for a visa on the grounds of the following relationships to their sponsor:

 

dependent child

adopted child or child for adoption

orphan relative

spouse (including defacto)

prospective spouse (fiancé(e))

interdependent partner

parent

aged dependent relative

remaining relative

special need relative or carer

 

Subsection 499(1) of the Act empowers the Minister for Immigration and Multicultural Affairs to give to a person or body having functions or powers under this Act written directions not inconsistent with the Act or regulations, in accordance with which the person or body shall perform those functions and exercise those powers.

 

Definitions

 

"Dependent child" has the meaning set out in regulation 1.03;

 

"orphan relative" has the meaning set out in regulation 1.14;

 

"adopted child or children for adoption" means an applicant who appears to satisfy subclause 102.211(2),(3),(4) or (5) of the Regulations;

 

"spouse" has the meaning set out in regulation 1.15A;

 

"Interdependent relationship" has the meaning set out in regulation 1.09A;

 

"Aged parent" and "working age parent" have the meanings set out in regulation 1.03;

 

“Carer” has the meaning set out in regulation 1.15AA;

 

“Special Need Relative” (repealed) has the meaning set out in Regulation 1.03 (prior to 1 December 1998);

 

“Remaining Relative” has the meaning set out in Regulation 1.15;

 

“Aged Dependent Relative” has the meaning set out in regulation 1.03;

 

“sponsor” includes “nominator”.

 

 

NOW:

 

I, Philip Maxwell Ruddock, Minister for Immigration and Multicultural and Indigenous Affairs, acting under section 499 of the Migration Act 1958, subject to that Act, hereby revoke General Direction No. 23 of 2001 which I gave on 9 May 2001, and give the following written direction:

 

1.      This Direction may be cited as Direction No 32.

 

2.      This Direction applies to all persons or bodies having powers under subsection 51(1) of the Act to consider and dispose of applications for Family Stream visas in such order as they consider appropriate.

 

3.      In deciding the order for considering and disposing of Family Stream applications, persons or bodies having powers under the Act are to have due regard to the objects and purposes of the Government's policy intentions for the Migration (non-Humanitarian) Program and the planning levels set.

 

4.      In delivering the Migration (non-Humanitarian) Program, it is the Government’s intention that the highest priority in the Family Stream is to provide for the reunion in Australia of the immediate family, that is spouses, dependent children (including children for adoption and orphan relatives), fiancé(e)s and interdependent partners of sponsors in Australia. It is the Government’s intention that applications made on those grounds should be accorded high priority and that lower priority should be given to other Family Stream applicants such as contributory parents, parents, aged dependent relatives, remaining relatives and carers.

 

5.      From time to time, processing offices may need to make a choice as to which applicants should receive processing priority within priority categories in the Family Stream. This policy direction provides guidance on how such a choice should be made. Whilst applications should generally be processed in the order in which they are received, it is the Government's view that, in general, priority should be given to processing applications sponsored by Australian citizens over those sponsored by Australian permanent residents and eligible New Zealand citizens and to applications involving minor children of the sponsor in Australia (including children for adoption and orphan relatives) over those that do not involve children.

 

6.      On 1 November 1999 the visa classes which provided for applicants applying on the grounds of being an orphan relative, aged dependent relative, remaining relative or carer were restructured into new classes (prior to 1 December 1998 the equivalent of carer was special need relative). It is the Government’s view that applications lodged before 1 November 1999 on each of these grounds in the repealed visa classes should be given priority over applications lodged after 1 November 1999 in the corresponding new classes of visa.

 

7.      In respect of applications made on the grounds of being a special need relative or carer, it is the Government’s view that these applications should have priority over applications made on the grounds of being a parent, aged dependent relative or remaining relative. Aged dependent relative and remaining relative applications should have the same priority as people applying on the grounds of being an aged parent.

 

8.      In respect of contributory parent visa applications (Contributory Parent (Migrant) class, Contributory Parent (Temporary) class, Contributory Aged Parent (Residence) class, Contributory Aged Parent (Temporary) class), it is the Government’s view that these applications should be accorded a higher processing priority than Parent (Migrant) class and Aged Parent (Residence) class visa applications. Within this grouping, it is the Government’s view that contributory parent visa applications should be given the following priority (with the highest priority first):

 

i)      All new contributory parent visa applications where the applicant had, prior to the lodgement of the contributory parent visa application, an unfinalised Parent or Aged Parent visa application and that application had been queued;

 

ii)      All new contributory parent visa applications where the applicant had, prior to the lodgement of the contributory parent visa application, an unfinalised Parent or Aged Parent visa application which had not yet been queued;

 

iii)    All other contributory parent visa applications in order of application date.

 

9.      In the case of all remaining applications on parent grounds (other than in the Designated Parent Class and the contributory parent classes), it is the Government’s view that priority should be given to processing of applications from aged parents ahead of working aged parents. Within these two groupings applications should be given the following priority (with the highest priority first):

 

i)      applications by parents who have an Australian citizen sponsor and who have all their children living in Australia;

 

ii)      applications by parents who have an Australian citizen sponsor and who have the majority of their children living in Australia

 

iii)      applications by parents who have an Australian citizen sponsor and who have only half or a minority of their children living in Australia;

 

iv)      applications by parents who have all their children living in Australia where the sponsor is not an Australian citizen;

 

v)      applications by parents who have the majority of their children living in Australia where the sponsor is not an Australian citizen;

 

vi)      applications by parents who have only half or a minority of their children living in Australia where the sponsor is not an Australian citizen.

 

10.      In deciding the order for considering and disposing of applications, persons or bodies having powers under the Act are to have due regard to these priorities.

 

11.      In certain classes of visa cases will arise where processing is completed while a section 85 cap is in place and grant cannot occur because of the existence of the cap. In deciding the order for considering and disposing of applications when the cap is lifted, persons or bodies having powers under this Act are to have due regard to the Government's view as to the order of disposing of cases set out in a separate section 499 Direction dealing with the consideration and disposal of queued applications in visa classes for which there is a cap in place.

 

12.      Notwithstanding the priority considerations set out in paragraph 5 to 9 to which persons or bodies having powers under the Act are to have due regard, in deciding the order for considering and disposing of Family Stream applications such persons or bodies should give due regard to special circumstances of a compelling or compassionate nature.

 

DATE OF EFFECT

 

This direction has effect from 27 June 2003.

 

Dated this 26th day of June 2003

 

 

 

Philip Ruddock

Minister for Immigration and Multicultural and Indigenous Affairs

Overview

The Migration Act 1958 is a foundational piece of legislation governing the movement of people to, from, and within Australia. This Act was enacted to provide a comprehensive legal framework for managing immigration, including the processing of visa applications. One of its primary purposes was to address the need for an orderly and efficient system to handle the influx of migrants and refugees, ensuring that immigration policies align with Australia's social, economic, and cultural objectives. The enacting body responsible for this legislation is the Parliament of Australia. The policy objective of this Act, as reflected in the legislative instrument Direction No: 32, is to establish a prioritised order for processing applications within the Family Stream, ensuring that the highest priority is given to reuniting immediate family members in Australia, while also considering other familial relationships and special circumstances.

Scope and Application

The Direction under section 499 of the Migration Act 1958, issued by the Minister for Immigration and Multicultural and Indigenous Affairs, applies to all persons or bodies having powers under the Act to consider and dispose of applications for Family Stream visas in the order they deem appropriate. This legislation sets out the priority order for processing these visa applications, ensuring alignment with the Government's policy intentions for the Migration (non-Humanitarian) Program and the planning levels established. The primary objective is to facilitate the reunion of immediate family members in Australia, giving the highest priority to spouses, dependent children, fiancé(e)s, and interdependent partners of sponsors residing in Australia. Secondary priority is assigned to other family members such as contributory parents, parents, aged dependent relatives, remaining relatives, and carers. The Direction also provides specific guidelines for processing within priority categories, such as giving preference to applications sponsored by Australian citizens over those sponsored by permanent residents and eligible New Zealand citizens, and to applications involving minor children of the sponsor. Special consideration is given to applications lodged before the restructuring of certain visa classes on 1 November 1999. Furthermore, contributory parent applications are prioritised over other parent applications, and within parent applications, aged parents are given precedence over working-age parents, with additional considerations based on the sponsor's citizenship status and the location of the sponsor's children. Despite these priorities, special circumstances of a compelling or compassionate nature may warrant deviation from the established order.

Key Provisions

The primary sections of this legislation, Direction No. 32 under the Migration Act 1958, pertain to the order of consideration and disposal of applications for visas in the Family Stream. According to subsection 51(1) of the Act, the Minister for Immigration and Multicultural and Indigenous Affairs has the authority to direct the order in which applications are considered and disposed of. This direction specifically applies to all persons or bodies that have the power to consider and dispose of Family Stream visa applications (Section 2). The Minister outlines that the order of consideration should align with the Government's policy intentions for the Migration (non-Humanitarian) Program and the established planning levels (Section 3). The directive emphasizes that the highest priority is to facilitate the reunion of immediate family members in Australia, including spouses, dependent children, fiancé(e)s, and interdependent partners of sponsors in Australia (Section 4). Other family members, such as contributory parents, parents, aged dependent relatives, remaining relatives, and carers, are to be given lower priority (Section 4). The Act imposes several obligations on the parties involved in the visa application process. Persons or bodies considering and disposing of Family Stream applications must have due regard to the Government's priority considerations. These include giving priority to applications sponsored by Australian citizens over those sponsored by Australian permanent residents and eligible New Zealand citizens, as well as to applications involving minor children of the sponsor (Section 5). They must also prioritize applications lodged before 1 November 1999 in the repealed visa classes over those lodged after that date in the new classes (Section 6). Additionally, they must give special priority to applications on the grounds of being a special need relative or carer over other parent-based applications (Section 7). Within the contributory parent visa applications, priority is to be given to certain new applications over others based on specific conditions (Section 8). Applications from aged parents should also be prioritized over working-aged parents, with further differentiation based on the sponsor's citizenship status and the location of the children (Section 9). Special circumstances of a compelling or compassionate nature may also influence the order of consideration (Section 10). Failure to comply with the provisions of this Direction may result in administrative consequences, although specific penalties are not detailed within this Direction itself. However, broader breaches of the Migration Act 1958 can result in both civil and criminal penalties. Civil penalties may include fines and, in some cases, deportation or exclusion from Australia. Criminal penalties may include imprisonment, depending on the nature and severity of the breach. The exact penalties for specific breaches would be determined in the context of the broader Act and associated regulations.

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