Migration Amendment (Resolution of Status Visa Additional Cohort) Regulations 2023

EXPLANATORY STATEMENT

Issued by the Minister for Immigration, Citizenship and Multicultural Affairs

Migration Act 1958

Migration Amendment (Resolution of Status Visa Additional Cohort) Regulations 2023

The Migration Act 1958 (the Migration Act) is an Act to regulate, in the national interest, the coming into and presence in Australia, and removal 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.

The Migration Amendment (Resolution of Status Visa Additional Cohort) Regulations 2023 (the amending Regulations) amend the Migration Regulations 1994 (the Migration Regulations) to allow for persons affected by the High Court’s decision in Love v Commonwealth; Thoms v Commonwealth (2020) 270 CLR 152 (Love) who have accepted an offer of permanent stay in Australia made by the Australian Government to be granted a permanent visa, the Subclass 851 (Resolution of Status) (RoS) visa. The grant of a permanent RoS visa also facilitates access to government entitlements and services for which holders of permanent visas are eligible.

In Love, a majority of the High Court held that an Aboriginal or Torres Strait Islander non-citizen who meets the tripartite test as set out by Brennan J in Mabo v Queensland [No. 2] (1992) 175 CLR 1 (Mabo [No. 2]) is not an ‘alien’ within the meaning of paragraph 51(xix) of the Constitution. The effect of this decision is that there is a category of persons who are neither Australian citizens nor aliens. To detain a person, an officer of the Department must reasonably suspect that the person is an unlawful non-citizen who is an alien. Otherwise, the person cannot be detained or removed from Australia under the Migration Act, which is enacted under the ‘naturalisation and aliens’ power in paragraph 51(xix) of the Constitution.

The amending Regulations amend the Migration Regulations to provide that a person is taken to have made a valid application for a RoS visa where:

• the Minister has issued a certificate to a person who is not or could not be detained under section 189 of the Migration Act by reason of the High Court’s decision in Love, and
• the Australian Government has made, and that person has accepted, an offer of permanent stay in Australia and the authorised officer has endorsed in writing the person’s acceptance.

A person who, under the Migration Regulations as amended, is taken to have made a valid application for a RoS visa would only be required to satisfy two criteria to be granted the visa, namely that the offer of a permanent stay has not been withdrawn, and that the person has not been assessed by the Australian Security Intelligence Organisation to be a risk to national security.

A Love-affected RoS visa applicant would not need to satisfy the criteria which other applicants for the RoS visa are required to satisfy, such as health criteria. This recognises the unique constitutional status of the Love-affected cohort, and that members of the cohort cannot be removed or deported from Australia even if they do not hold a visa. Conversely, an applicant for a RoS visa who is not affected by Love but who is instead a former holder of a temporary protection visa would not be required to satisfy the requirement that an offer of permanent stay has not been withdrawn. These cohorts are intended to remain separate, notwithstanding that the same class of visa is used to resolve their immigration status and provide a pathway to permanent residency.

The Migration Act specifies no conditions that need to be satisfied before the power to make the regulations may be exercised.

The matters dealt with in the amending Regulations are appropriate for implementation in regulations rather than by Parliamentary enactment. It has been the consistent practice of the Government of the day to provide for detailed visa criteria and conditions in the Migration Regulations rather than in the Migration Act itself. The Migration Act expressly provides for these matters to be prescribed in regulations, as can be seen in the authorising provisions listed in Attachment A. These include, for example, subsection 31(3), which provides that Regulations may prescribe criteria for a visa or visas of a specified class.

The current Migration Regulations have been in place since 1994, when they replaced regulations made in 1989 and 1993. Providing for these details to be in delegated legislation rather than primary legislation gives the Government the ability to effectively manage the operation of Australia’s visa program and respond quickly to emerging needs.

A Statement of Compatibility with Human Rights (the Statement) has been completed in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. The overall assessment is that the Regulations are compatible with human rights. A copy of the Statement is at Attachment B.

The Office of Impact Analysis (OIA) has been consulted in relation to the amendments. No Impact Analysis is required. The OIA consultation reference is OIA23-00424.

Consultation has been undertaken with other government agencies including the National Indigenous Australians Agency and the Attorney-General’s Department. Public consultation was not considered necessary or appropriate as the amendments are entirely beneficial to visa applicants, there is no disadvantageous impact on visa applicants’ rights, and no liabilities are imposed. This accords with the consultation requirements in section 17 of the Legislation Act 2003 (the Legislation Act).

The amending Regulations commence on the day after registration on the Federal Register of Legislation.

Further details of the Regulations are set out in Attachment C.

The amending Regulations amend the Migration Regulations, which are exempt from sunsetting under table item 38A of section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015. The Migration Regulations are exempt from sunsetting on the basis that the repeal and remaking of the Migration Regulations:

• is unnecessary as the Migration Regulations are regularly amended numerous times each year to update policy settings for immigration programs;
• would require complex and difficult to administer transitional provisions to ensure, amongst other things, the position of the many people who hold Australian visas, and similarly, there would likely be a significant impact on undecided visa and sponsorship applications; and
• would demand complicated and costly systems, training and operational changes that would impose significant strain on Government resources and the Australian public for insignificant gain, while not advancing the aims of the Legislation Act.

The amending Regulations are a legislative instrument for the purposes of the Legislation Act.

ATTACHMENT A

AUTHORISING PROVISIONS

Subsection 504(1) of the Migration Act 1958 (the Migration Act) relevantly provides that the Governor‑General may make regulations 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, the following provisions of the Migration Act may also be relevant:

• subsection 31(1), which provides that the regulations may prescribe classes of visas;
• subsection 31(3), which provides that the regulations may prescribe criteria for a visa or visas of a specified class;
• paragraph 46(1)(b), which provides that a visa application is valid if, and only if, it satisfies the criteria and requirements prescribed under section 46;
• subsection 46(3), which provides that the regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application;

• paragraph 46(4)(a), which provides that, without limiting subsection 46(3), the regulations may prescribe the circumstances that must exist for an application for a visa of a specified class to be a valid application; and

• subsection 504(2), which provides that section 14 of the Legislation Act 2003 does not prevent regulations whose operation depends on a country or other matter being specified or certified by the Minister in an instrument in writing made under the regulations after the commencement of the regulations.

ATTACHMENT B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Migration Amendment (Resolution of Status Visa Additional Cohort) Regulations 2023

This Disallowable Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Disallowable Legislative Instrument

The amendments to the Migration Regulations 1994 (the Migration Regulations) made by the Migration Amendment (Resolution of Status Visa Additional Cohort) Regulations 2023 (the Amendment Regulations) allow persons affected by the decision of the High Court of Australia in Love v Commonwealth; Thoms v Commonwealth (2020) 270 CLR 152 (Love) who have accepted an offer of permanent stay in Australia made by the Australian Government (referred to in this Statement as the ‘Love‑affected cohort’), to be granted a permanent visa. The High Court’s decision recognised a category of persons who are not Australian citizens but who, because they are an Aboriginal and/or Torres Strait Islander person, are not aliens within the meaning of paragraph 51(xix) of the Constitution. A person in this category cannot be detained or removed from Australia under the Migration Act 1958 (the Migration Act), which is enacted under the ‘naturalisation and aliens’ power in paragraph 51(xix) of the Constitution.

The amendments made by the Amendment Regulations provide a clear pathway to resolving the status of members of the Love‑affected cohort who have accepted an offer of permanent stay in Australia made by the Australian Government, through the grant of the Resolution of Status (RoS) subclass 851 visa, which is a permanent visa. While providing certainty as to their immigration status, the grant of a RoS visa to identified members of this cohort will also facilitate critical access to government entitlements and services for which they may be eligible such as JobSeeker, Rental Assistance, social housing and the National Disability Insurance Scheme.

The Minister (or delegate) may issue a certificate to persons who, by reason of the Love decision, cannot be taken into or have been released from immigration detention. The Australian Government may offer permanent stay in Australia to a person who has been certified as such by the Minister. If that offer is accepted, that person is deemed to have made an application for a RoS visa at the time at which the person’s acceptance of the offer is endorsed by an authorised officer in writing, and the application will be assessed against the visa criteria accordingly.

In recognition of the special status of the Love-affected cohort, the criteria for grant of the RoS visa to them will be limited to a public interest criterion relating to national security, and a requirement that the Minister has not withdrawn the offer of a permanent stay before grant of the visa. It is intended that the Minister would withdraw the offer only if information came to light before visa grant that the person was not a member of the Love-affected cohort.

The national security requirement reflects the importance of identifying applicants who may present a risk (directly or indirectly) to the security of Australia within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979.

While a member of the Love-affected cohort can have their visa refused, the effect of the High Court’s decision in Love is that they are not subject to immigration detention or removal from Australia under the Migration Act. Refusal of the visa in these circumstances will mean that they will not be able to access the benefits of being a RoS visa holder.

Human rights implications

This Disallowable Legislative Instrument may engage the following rights:

Economic and social rights

The Amendment Regulations are intended as a positive measure that will benefit members of the Love‑affected cohort. While persons affected by the Love decision who do not otherwise hold a visa have been granted temporary Special Purpose Visas and are currently able to work, study, access Medicare, and the Status Resolution and Support Service (SRSS) program if assessed as eligible, the grant of a permanent RoS visa will enable access to various Government entitlements and services. These include social security payments, the National Disability Insurance Scheme, enhanced access to tertiary study through becoming eligible for higher education assistance, and social housing in some States and Territories, if deemed eligible.

The grant of the RoS visa to members of the Love‑affected cohort will promote the human rights of this cohort including rights under the ICESCR relating to work, education, social security, health and an adequate standard of living.

Rights relating to families and children

The Amendment Regulations may promote the rights relating to the protection of the family contained in Articles 17 and 23(1) of the ICCPR and rights relating to applications for reunification of children and their parents in Article 10(1) of the CRC. Temporary visa holders are not eligible to sponsor family members for Australian visas. Providing access to a permanent visa to members of the Love‑affected cohort may enable those members of the cohort who have family members who are not Australian citizens or permanent residents to sponsor these family members (including children) for migration to Australia.

Equality and non-discrimination

The Amendment Regulations may engage the rights of equality and non‑discrimination contained in Article 2(1) and Article 26 of the ICCPR, Article 2(2) of the ICESCR and Article 2(2) of the CERD. This is because the amendments will extend the benefit of being eligible for a RoS visa, with the need to meet only very limited visa requirements, only to individuals affected by the High Court’s decision in Love, being those persons who are not Australian citizens but who are an Aboriginal or Torres Strait Islander person, and who have accepted an offer of permanent stay in Australia made by the Australian Government.

Article 2(1) of the ICCPR states:

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 26 of the ICCPR provides that:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

However, in its General Comment 18, the UN Human Rights Committee stated that:

The Committee observes that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.

Article 2(2) of the ICESCR provides that:

The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 

In its General Comment on Article 2 of the ICESCR, the UN Committee on Economic, Social and Cultural Rights has stated (at 13) that:

Differential treatment based on prohibited grounds will be viewed as discriminatory unless the justification for differentiation is reasonable and objective. This will include an assessment as to whether the aim and effects of the measures or omissions are legitimate, compatible with the nature of the Covenant rights and solely for the purpose of promoting the general welfare in a democratic society. In addition, there must be a clear and reasonable relationship of proportionality between the aim sought to be realized and the measures or omissions and their effects.

Article 2(2) of the CERD states:

States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.

The measures in the Amendment Regulations provide a benefit to the members of the Love‑affected cohort who cannot be detained or removed from Australia under the Migration Act. Access to a permanent visa, with limited criteria for the grant of the visa, is necessary and reasonable to provide members of this cohort greater certainty regarding their immigration status in Australia and facilitate access to relevant Government entitlements and services. This is proportionate to the objective of promoting the rights of Aboriginal and Torres Strait Islander persons, including their economic, cultural and social rights. These measures do not detract from visa avenues available to others who are non-Aboriginal or Torres Strait Islander non-citizens.

While there are only very limited requirements for the grant of a RoS visa to a member of the Love‑affected cohort, the person will be refused the visa if they are assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to national security, within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979. However, this will not result in that person being placed in immigration detention or removed from Australia. Rather, it will mean that the person will not be able to access the benefits of a RoS visa, such as access to certain Government entitlements. The Government considers it necessary, reasonable and proportionate that non-citizen non-aliens who pose a national security risk are identified through the visa process and should not have access to the additional benefits of a permanent visa.

Freedom of movement

Article 12 of the ICCPR states:

Grant of a RoS visa may promote the freedom of movement of members of the Love-affected cohort as it will enable them to travel into and out of Australia for up to five years, or more with a further Resident Return visa. In addition, noting the High Court’s decision and its categorisation of this cohort as not being aliens given the nature of their ties with Australia, it would be appropriate to consider Australia as the ‘own country’ of the members of this cohort for the purpose of Article 12(4) and the right to enter and re-enter that country. The grant of permanent residency supports this right and provides certainty of affected individuals’ immigration status.

Right to enjoy and benefit from culture

Article 27 of the ICCPR protects the rights of individuals belonging to ethnic, religious and linguistic minorities within a country to enjoy their own culture, practise their own religion and use their own language. Article 15 of ICESCR protects the right of all persons to take part in cultural life.

The Human Rights Committee has regarded Indigenous peoples as a minority for the purposes of Article 27 of the ICCPR. The Committee on Economic, Social and Cultural Rights has stated that Indigenous peoples’ cultural values and rights associated with their ancestral lands and their relationship with nature should be regarded with respect and protected.

The measures in the Amendment Regulations may also broadly support the cultural rights of the members of the Love‑affected cohort as the grant of a RoS visa to members of this cohort and the more certain immigration status that this entails, may better support them to maintain their cultural values, and enjoy the rights and practise the custodial obligations associated with their ancestral lands and communities.

Conclusion

The Disallowable Legislative Instrument is compatible with human rights because it promotes the human rights of individuals who are members of the Love-affected cohort.

The Hon Andrew Giles MP

Minister for Immigration, Citizenship and Multicultural Affairs

ATTACHMENT C

Details of the Migration Amendment (Resolution of Status Visa Additional Cohort) Regulations 2023

Section 1 - Name

This section provides that the name of the instrument is the Migration Amendment (Resolution of Status Visa Additional Cohort) Regulations 2023.

Section 2 - Commencement

This section provides for the commencement of the instrument.

Subsection 2(1) provides that each provision of the instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

The effect of the table is that the whole of the instrument commences on the day after it is registered on the Federal Register of Legislation.

Section 3 - Authority

This section provides that the instrument is made under the Migration Act 1958 (the Migration Act).

Section 4 - Schedules

This section provides for how the amendments made by the instrument operate.

Schedule 1 – Amendments

Migration Regulations 1994

Item [1] – Subregulation 2.07AQ(3) (at the end of the table)

This item inserts a new table item 5 into the existing table contained within subregulation 2.07AQ(3). Subregulation 2.07AQ(2) provides that an application for a Resolution of Status (Class CD) visa is taken to have been validly made by a person if the requirements of subregulation 2.07AQ(3) have been met. Subregulation 2.07AQ(3) provides that the requirements are met for a person if the criteria set out in at least 1 item of the table are satisfied.

The criteria in new table item 5 are satisfied if:

• the circumstances specified in subregulation 2.07AQ(3A) exist; and

• the person has been offered a permanent stay in Australia by the Australian Government; and

• the person indicates to an authorised officer that they accept the offer of a permanent stay; and

• the authorised officer endorses in writing the person’s acceptance of the offer.

These requirements, read with new subregulation 2.07AQ(3A), reflect the policy intent that the criteria in the new table item 5 can only be satisfied by a person affected by the High Court’s decision in Love v Commonwealth; Thoms v Commonwealth (2020) 270 CLR 152 (Love).

Item [2] – After subregulation 2.07AQ(3)

This item inserts new subregulation 2.07AQ(3A), which provides that the circumstance referenced in column 1 of table item 5 in subregulation 2.07AQ(3) exists for a person if the Minister has issued a certificate stating that by reason of the High Court’s decision in Love:

• for a person in the migration zone – the person has been released from immigration detention, or has not been taken into immigration detention, or (based on the information known to the Minister as at the date of the certificate) will not be taken into immigration detention;

• for a person not in the migration zone – the Minister is satisfied, based on the information known to the Minister at the date of the certificate, that the person could not be detained under section 189 of the Migration Act if the person were in the migration zone.

Item [3] – Subregulation 2.07AQ(6)

Subregulation 2.07AQ(6) clarifies when a Resolution of Status (Class CD) visa application is taken to have been made under regulation 2.07AQ, and provides that if the application is taken to have been validly made because the criteria in items 3 or 4 of the table in subregulation 2.07AQ(3) have been satisfied, the application is taken to have been made when the authorised officer endorses the person’s acceptance of the offer of a permanent stay.

This item adds a reference to new table item 5, confirming that the application is taken to have been made when the authorised officer endorses the person’s acceptance of the offer as described in table item 5.

Item [4] Before clause 851.221 of Schedule 2

This item inserts new clauses 851.221A, 851.221B, and 851.221C into Schedule 2 to the Migration Regulations. These clauses are the prescribed criteria for an applicant for a Subclass 851 (Resolution of Status) (RoS) visa who is taken to have made an application because the criteria in table item 5 in subregulation 2.07AQ(3) were satisfied.

New clause 851.221A clarifies which of the Schedule 2 criteria must be met by an applicant for a RoS visa who meets the criteria in item 5 of the table in subregulation 2.07AQ(3) – that is, a person affected by the High Court’s decision in Love – and which criteria must be met by all other applicants for a RoS visa.

Subclause 851.221A(1) provides that an applicant who meets the criteria in item 5 of the table in subregulation 2.07AQ(3) must meet the criteria in clauses 851.221B and 851.221C of Schedule 2 to the Migration Regulations.

Subclause 851.221A(2) provides that any other applicant for a RoS visa must satisfy the criteria set out in clauses 851.221 to 851.229. There are other cohorts of visa applicants who are assessed against criteria for grant of the RoS visa, including certain holders or former holders of temporary protection and safe haven enterprise visas, and the intention is that the criteria relevant to these other RoS visa applicants will remain separate. Applicants affected by the decision in Love will not be required to meet the health criteria for example. Conversely, is it not intended that other applicants should be subject to the requirement that the offer of stay specified in the table under subregulation 2.07AQ(3) has not been withdrawn.

New clause 851.221B requires that the offer of a permanent stay to the applicant has not been withdrawn by the Australian Government. It is intended that such an offer would be withdrawn in limited circumstances, specifically where additional information becomes known to the Minister that suggests a person is not – or is probably not – affected by the decision in Love.

New clause 851.221C provides that the applicant must satisfy public interest criterion 4002. Public interest criterion 4002 requires that “[t]he applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security, within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979.” This is prescribed as a criterion to be satisfied for the grant of the majority of visas.