EXPLANATORY STATEMENT
Issued by the Minister for Immigration, Citizenship and Multicultural Affairs
Migration Act 1958
Migration Amendment (Dependent Secondary Partner Visa Applicants) Regulations 2024
The Migration Act 1958 (the Migration Act) is an Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons.
Subsection 504(1) of the Migration Act provides that the Governor-General may make regulations, not inconsistent with the Migration Act, prescribing matters required or permitted to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Migration Act.
In addition, regulations may be made pursuant to the provisions listed in Attachment A.
The Migration Amendment (Dependent Secondary Partner Visa Applicants) Regulations 2024 (the Amendment Regulations) amend the Migration Regulations 1994 (the Migration Regulations), to enable a cohort of secondary applicants for Subclass 309 (Partner (Provisional)) and Subclass 100 (Partner) visas who, due to the impact of the now revoked Ministerial Direction 80[1], no longer meet the age requirement for the visa, to be eligible for the grant of the visa. Ministerial Direction 80 gave the lowest processing priority to applications for Family visas where the sponsor was a permanent resident who entered Australia as an Unauthorised Maritime Arrival, and was revoked on 9 February 2023.
A ‘secondary’ applicant is generally a close family member of the primary applicant, who in this case is the partner of an Australian citizen or permanent resident. The Amendment Regulations enables a secondary applicant to be eligible for the grant of the visas as a ‘dependent’ of the primary applicant rather than as a member of the family unit (MoFU).
The definition of MoFU under regulation 1.12 of the Migration Regulations includes an age limit relating to who is considered to be a ‘child’ of another person (the family head, who is generally the primary applicant for a visa) for most applicants. The usual rule under the MoFU definition is that a child must be either under 18, or under 23 and dependent on the family head, or wholly reliant on the family head due to incapacitation for work as a result of the total or partial loss of the person’s bodily or mental functions.
The now revoked Ministerial Direction 80 provided the lowest processing priority to Family visa applications, including applications for a Subclass 309 or Subclass 100 visa, where the sponsor was a permanent visa holder who arrived in Australia as an unauthorised maritime arrival (UMA), resulting in extended processing times for such applications. As a result of these extended processing times, a cohort of secondary applicants have passed the age of 23 and are no longer able to satisfy the criteria requiring them to be a MoFU of the primary applicant at the time of decision.
The Amendment Regulations amend the relevant criteria to provide that applicants in these circumstances need only satisfy the Minister that they remain dependent on the primary applicant at the…
Overview
The Migration Amendment (Dependent Secondary Partner Visa Applicants) Regulations 2024 amends the Migration Regulations 1994 to address a gap created by the revocation of Ministerial Direction 80, which previously assigned the lowest processing priority to family visa applications, including Subclass 309 (Partner (Provisional)) and Subclass 100 (Partner) visa applications, where the sponsor was a permanent visa holder who arrived in Australia as an unauthorised maritime arrival. This revocation, effective 9 February 2023, resulted in some secondary applicants, who are generally close family members of the primary applicant, no longer meeting the age requirements to be considered a 'member of the family unit' at the time their application is finally decided. The Amendment Regulations, enacted under the authority of the Migration Act 1958, ensure that secondary applicants who remain dependent on the primary applicant can still be eligible for these visas regardless of their age, provided their application was made before 9 February 2023 but not finally determined. The policy objective of these amendments is to mitigate the adverse impact of processing delays on secondary applicants and to facilitate family reunification.
Scope and Application
The Migration Amendment (Dependent Secondary Partner Visa Applicants) Regulations 2024 amend the Migration Regulations 1994 to address the eligibility of secondary applicants for Subclass 309 (Partner (Provisional)) and Subclass 100 (Partner) visas who have been adversely affected by the processing delays caused by Ministerial Direction 80. The Regulation applies to secondary applicants for these visas who were sponsored by a permanent resident who entered Australia as an Unauthorised Maritime Arrival, and who have turned 23 years old while awaiting a decision on their visa application. The amendments permit these secondary applicants to be eligible for the grant of the Subclass 309 visa if they were dependent on the primary applicant at the time of applying for the visa and remain dependent on the primary applicant at the time a decision is made on their application. The Regulation also makes consequential changes to the Subclass 100 visa criteria to allow applicants granted a Subclass 309 visa under the amended criteria to subsequently be granted the permanent visa. The changes apply to visa applications made but not finally determined before 9 February 2023, the date on which Ministerial Direction 80 was revoked. The Regulation is exempt from sunsetting provisions due to the complex transitional issues that would arise from repealing and remaking the Migration Regulations. The Minister for Immigration, Citizenship and Multicultural Affairs has prepared a Statement of Compatibility with Human Rights, which concludes that the Regulations are compatible with human rights.
Key Provisions
- The Migration Amendment (Dependent Secondary Partner Visa Applicants) Regulations 2024 amend the Migration Regulations 1994 to adjust the eligibility criteria for secondary applicants of Subclass 309 (Partner (Provisional)) and Subclass 100 (Partner) visas. These amendments are targeted at secondary applicants who were adversely affected by the now-revoked Ministerial Direction 80, which had imposed the lowest processing priority on family visa applications where the sponsor was a permanent resident who arrived in Australia as an unauthorised maritime arrival (UMA). The changes aim to ensure that secondary applicants who turned 23 while awaiting a decision on their visa applications can still meet the criteria for these visas (Items [2] and [6]).
- The Regulations impose specific obligations on applicants and their sponsors to ensure compliance with the new criteria. Secondary applicants must demonstrate that they were dependent on the primary applicant at the time of applying for the visa and remain dependent on the primary applicant at the time a decision is made on their visa application (Subclause 309.321(3)). The primary applicant, in turn, must ensure that any secondary applicants meet these dependency requirements. Additionally, all applicants, whether primary or secondary, must satisfy the public interest criteria and any other relevant conditions specified in the amended Regulations (Items [4] and [5]).
- There are no specific offences or penalties outlined in the Amendment Regulations themselves. However, failure to comply with the amended criteria for visa eligibility could result in the refusal of a visa application. The primary consequence of non-compliance would be the inability of affected secondary applicants to be granted the Subclass 309 or Subclass 100 visa due to not meeting the eligibility criteria. This could potentially lead to delays or disruptions in family reunification processes for those affected by the previous processing delays. The overarching legislative framework under the Migration Act 1958 would apply, which includes provisions for the refusal, cancellation, or revocation of visas where the statutory criteria are not met (Sections 501 and 501CA).
- Area of Law
- Immigration & Refugee Law
- Instrument
- Regulation
- Concepts
- Definitions & Interpretation
- Reporting & Disclosure Obligations
- Compliance Obligations
