EXPLANATORY STATEMENT
Migration Regulations 1994
Migration (Appropriate Regional Authority) Instrument (LIN 20/236) 2020
(Regulation 1.03)
- The instrument, LIN 20/236, is made under the definition of appropriate regional authority in regulation 1.03 of the Migration Regulations 1994 (the Regulations).
- The instrument repeals the instrument APPROPRIATE REGIONAL AUTHORITY (IMMI 10/041) (F2010L01487) made under the definition of appropriate regional authority in regulation 1.03 of the Regulations. Subsection 33(3) of the AIA states that where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character, the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
- The instrument operates to define an ‘appropriate regional authority’ for the purpose of regulation 1.03 of the Regulations. The definition in regulation 1.03 provides that in relation to a State or Territory and applications for visas of a particular class, an ‘appropriate regional authority’ is a Department or authority of that State or Territory that is specified in a legislative instrument made by the Minister in relation to the grant of that class.
- The instrument also operates to specify appropriate regional authorities for the purpose of the definition of appropriate regional authority in regulation 1.03 of the Regulations. Specifically to reflect the correct names for the appropriate regional authorities who are able to sign sponsorship forms required to be lodged with an application for one of five legacy classes of visa. The names that differ from the previous instrument and are the current appropriate regional authorities are as follows:
- New South Wales Treasury (NSW);
- Department of Jobs, Precincts and Regions (VIC);
- Trade and Investment Queensland (BSMQ)(QLD);
- Small Business Development Corporation (WA);
- Department for Innovation and Skills (SA);
- Department of State Growth (TAS);
- Department of Industry, Tourism and Trade (NT);
- ACT Chief Minister, Treasury and Economic Development Directorate (ACT).
5. Legislative Instrument IMMI 10/041 is due to sunset on 1 October 2020. The purpose of this instrument is to remake IMMI 10/041 to safeguard the rights of the holders of five residual classes of visa, whose visa functionality will be impacted if LIN 20/236 is not made. The five legacy classes of visa are the following visas:
- Business Skills (Migrant) (Class AD);
- Business Skills – Established Business (Residence) (Class BH);
- Business Skills (Residence) (Class DF);
- Business Skills (Provisional) (Class UR);
- Investor Retirement (Class UY).
6. The Business Skills (Migrant) (Class AD) visa and the Business Skills – Established Business (Residence) (Class BH) have been omitted from the Regulations. However both of these visa classes have transitional savings provisions in the amending regulations, for the Class AD visa, see Migration Amendment Regulations 2002 (No. 10) ( F2002B00355) and for the Class BH visa, see Migration Amendment Regulation 2012 (No. 2) (F2012L01105).
7. Consultation was undertaken before the instrument was made with all States and Territory governments listed under item 4 above.
8. The Office of Best Practice Regulation (OBPR) has advised that a Regulatory Impact Statement is not required (OBPR Reference 43087).
9. Under item 20 of the table in section 10 of the Legislation (Exemption and other Matters) Regulation 2015, the instrument is exempt from disallowance and therefore a Statement of Compatibility with Human Rights is not required.
10. The instrument commences on the day after it is registered on the Federal Register of Legislation.
Overview
The Migration Regulations 1994 were enacted to provide a comprehensive regulatory framework governing the administration of the Migration Act 1958, addressing the need for detailed rules and procedures to manage the entry, stay, and departure of individuals from Australia. The Migration (Appropriate Regional Authority) Instrument (LIN 20/236) 2020 is an instrument made under the authority of the Migration Act 1958 and the Migration Regulations 1994. It was introduced to address the need to update the names and definitions of appropriate regional authorities responsible for processing specific classes of visa applications, thereby ensuring that the legislative framework remains current and effective. This instrument was created by the Minister for Home Affairs under subsection 33(3) of the Administrative Arrangements (Migration) Order 2019, ensuring alignment with the overarching policy objectives of the Migration Act. The instrument aims to specify the correct regional authorities for the purpose of processing applications for five legacy classes of visa, which includes the Business Skills (Migrant) visa, Business Skills – Established Business (Residence) visa, Business Skills (Residence) visa, Business Skills (Provisional) visa, and Investor Retirement visa.
Scope and Application
The instrument, LIN 20/236, is made under the definition of appropriate regional authority in regulation 1.03 of the Migration Regulations 1994. It specifically defines and specifies appropriate regional authorities for certain states and territories to ensure the correct entities can sign sponsorship forms required for applications of five legacy classes of visas, namely Business Skills (Migrant) (Class AD), Business Skills – Established Business (Residence) (Class BH), Business Skills (Residence) (Class DF), Business Skills (Provisional) (Class UR), and Investor Retirement (Class UY). This instrument replaces the earlier legislative instrument IMMI 10/041, which is due to sunset on 1 October 2020, thereby safeguarding the rights of current visa holders affected by the change. It applies to the states and territories of Australia by identifying the correct authorities responsible for processing these visa applications and operates to ensure continuity and compliance with visa regulations as they pertain to these legacy classes. The instrument is exempt from disallowance and does not require a Statement of Compatibility with Human Rights as per the Legislation (Exemption and other Matters) Regulation 2015.
Key Provisions
The Migration (Appropriate Regional Authority) Instrument 2020 (LIN 20/236) operates under regulation 1.03 of the Migration Regulations 1994 (subsections 1.03 and 33(3) of the Act). It repeals the previous instrument, APPROPRIATE REGIONAL AUTHORITY (IMMI 10/041) (F2010L01487), and redefines the ‘appropriate regional authority’ for specific states and territories concerning applications for particular visa classes. The instrument specifically updates the names of the appropriate regional authorities in line with the current nomenclature, such as New South Wales Treasury (NSW) and Trade and Investment Queensland (QLD). This legislative instrument ensures the continuity of sponsorship form approvals for five legacy classes of visas, namely Business Skills (Migrant) (Class AD), Business Skills – Established Business (Residence) (Class BH), Business Skills (Residence) (Class DF), Business Skills (Provisional) (Class UR), and Investor Retirement (Class UY).
The Act imposes several obligations on the parties and entities it governs, primarily focusing on the accurate identification and specification of the appropriate regional authorities for each state and territory. This ensures that the right entities are responsible for signing sponsorship forms required for applications for specified legacy visa classes. The instrument also mandates that these authorities comply with the updated definitions and names as specified in the legislation to maintain the functionality and legality of visa applications.
Failure to comply with the provisions of the instrument may result in significant consequences for the parties involved. Although specific offences, penalties, or civil/criminal consequences are not detailed within the text, the instrument’s purpose is to safeguard the rights of visa holders by ensuring continuity in the processing of applications. The legislative framework implies that non-compliance could potentially impact the validity of visa applications and the rights of visa holders, which may be addressed under broader migration laws or regulations.