EXPLANATORY STATEMENT
Issued by authority of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Migration Regulations 1994
Migration (Arrangements for New Zealand Citizen (Family Relationship) visa applications) Amendment Instrument (LIN 22/062) 2022
1 The instrument, Departmental reference LIN 22/062, is made under subregulation 2.07(5) of the Migration Regulations 1994 (the Regulations).
2 The instrument amends Migration (IMMI 18/076: Arrangements for Other Family Visa Applications and New Zealand (Family Relationship) Visa Applications) Instrument 2018 (F2018L00772) (IMMI 18/076) in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (the Acts Interpretation Act). That subsection provides that a power to make a legislative instrument includes a power to amend or repeal that instrument in the same manner, and subject to the same conditions, as the power to make the instrument. This means that subregulation 2.07(5) of the Regulations also includes a power to amend or repeal an instrument made under that provision.
3 The instrument commences on 1 July 2022, and is a legislative instrument for the Legislation Act 2003 (the Legislation Act).
Purpose
4 The purpose of the instrument is to update the approved form, place and manner (the arrangements) specified in IMMI 18/076 for making an application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa (Class UP visa).
5 Item 1214BA of Schedule 1 to the Regulations prescribes the requirements that an applicant for a Class UP visa must meet to make a valid visa application. These requirements include that the application for a Class UP visa must be made using the approved form, at the place and in the manner specified in a legislative instrument made under subregulation 2.07(5) of the Regulations.
6 Schedule 2 to the Home Affairs Legislation Amendment (2022 Measures No. 1) Regulations 2022 (the Amendment Regulations) amends the Regulations to allow Class UP visa applicants outside Australia to make a valid application in Australia. Prior to this amendment, applicants outside of Australia had to make their applications outside of Australia by lodging an application with a departmental office overseas, which posed challenges for applicants during COVID-19 related lockdowns, when some departmental offices outside Australia were not able to operate.
7 The instrument coincides with the amendments made to the Regulations by the Amendment Regulations. It removes the requirement for applicants outside Australia to make an application for a Class UP visa at a diplomatic, consular or migration office maintained by or on behalf of the Commonwealth outside Australia. The instrument does not make changes to the arrangements for making applications for other classes of visa specified in IMMI 18/076.
Consultation
8 The Office of Best Practice Regulation (OBPR) was consulted and considered that the instrument dealt with matters of a minor or machinery nature and no regulatory impact statement was required. The OBPR reference number is 44683.
9 No further external consultation was undertaken for the instrument. This is because the changes implemented by the instrument follow amendments made to the Regulations by the Amendment Regulations, where no consultations were considered necessary or appropriate. This accords with subsection 17(1) of the Legislation Act, as the amendments made by the Amendment Regulations would be entirely beneficial to visa applicants, would have no disadvantageous impact on visa applicants’ rights, and would impose no liabilities.
Details of the instrument
10 Section 1 sets out the name of the instrument.
11 Section 2 provides for the commencement of the instrument on 1 July 2022.
12 Section 3 provides that Schedule 1 to the instrument amends IMMI 18/076.
13 Item 1 of Schedule 1 to the instrument amends the table in Schedule 3 to IMMI 18/076. It removes the requirement for applicants outside Australia to make a Class UP visa application at a diplomatic, consular or migration office maintained by or on behalf of the Commonwealth outside Australia.
Parliamentary scrutiny etc.
14 The instrument is exempt from disallowance under section 42 of the Legislation Act. This is because it is an instrument made under subregulation 2.07(5) of the Regulations, which is exempt from disallowance under paragraph (b) of item 20 in section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015.
15 The instrument is appropriate to be exempt from disallowance as it concerns matters of an administrative nature. Updating legislative instruments that specify administrative matters allows for consistent internal management of the migration policy framework in accordance with Departmental resources and arrangements.
16 The instrument is made by a delegate of the Minister, in accordance with subregulation 2.07(5) of the Regulations.
Overview
The Migration (Arrangements for New Zealand Citizen (Family Relationship) visa applications) Amendment Instrument (LIN 22/062) 2022, made under the Migration Regulations 1994, was introduced to update the procedures for New Zealand Citizen (Family Relationship) visa applications. This instrument was enacted to address the difficulties experienced by visa applicants during the COVID-19 pandemic, particularly those outside Australia who faced challenges in submitting their applications due to lockdowns and the closure of overseas departmental offices. The policy objective was to streamline the application process for these applicants by allowing them to submit their applications within Australia, thereby ensuring continuity and accessibility of the visa application process. The instrument was enacted by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and commenced on 1 July 2022. It is exempt from disallowance, as it pertains to administrative matters that facilitate the internal management of the migration policy framework.
Scope and Application
The Migration (Arrangements for New Zealand Citizen (Family Relationship) visa applications) Amendment Instrument (LIN 22/062) 2022 amends the Migration (IMMI 18/076: Arrangements for Other Family Visa Applications and New Zealand (Family Relationship) Visa Applications) Instrument 2018 to update the approved form, place, and manner for making an application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa. The instrument applies to individuals who are New Zealand citizens applying for a Class UP visa for the purpose of reuniting with their family in Australia. This legislative amendment is made under subregulation 2.07(5) of the Migration Regulations 1994, and it specifically addresses the requirements for visa applicants who are located outside Australia, allowing them to make their applications in Australia instead of at a diplomatic, consular, or migration office outside Australia. The instrument commenced on 1 July 2022 and is a legislative instrument under the Legislation Act 2003. This amendment follows changes made by the Home Affairs Legislation Amendment (2022 Measures No. 1) Regulations 2022, which enabled Class UP visa applicants outside Australia to make valid applications within Australia, thereby addressing challenges posed by COVID-19 related lockdowns. The instrument does not alter the arrangements for other classes of visas specified in IMMI 18/076.
Key Provisions
The main operative sections of this legislative instrument, item 1 of Schedule 1, amend the Migration (Arrangements for Other Family Visa Applications and New Zealand (Family Relationship) Visa Applications) Instrument 2018 (F2018L00772) (referred to as IMMI 18/076). Specifically, it removes the requirement for New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa applicants outside Australia to lodge their applications at a diplomatic, consular, or migration office maintained by or on behalf of the Commonwealth outside Australia. This amendment aligns with changes made to the Migration Regulations 1994 by the Home Affairs Legislation Amendment (2022 Measures No. 1) Regulations 2022 (the Amendment Regulations), which allow applicants outside Australia to make valid applications in Australia (sections 2 and 12). The instrument aims to streamline the application process and address challenges faced by applicants during COVID-19 lockdowns when some overseas offices were unable to operate.
The Act imposes specific obligations and requirements on visa applicants, particularly those seeking a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa. Applicants must now submit their applications in Australia, rather than being required to lodge them at a diplomatic, consular, or migration office outside Australia (item 1 of Schedule 1). This change ensures that applicants can make their applications regardless of their location, provided they are in Australia. The Act also specifies that the application must be made using the approved form, at the place, and in the manner specified in a legislative instrument made under subregulation 2.07(5) of the Regulations (item 1214BA of Schedule 1 to the Regulations).
The legislation does not explicitly outline offences, penalties, or civil/criminal consequences for breaches in this particular instrument. However, generally, failure to comply with visa application requirements can result in the application being invalid, leading to delays or denial of the visa. Such non-compliance could also have broader implications for immigration matters, including potential bans on future visa applications or deportation if the individual is already in Australia on another visa. The penalties for non-compliance typically depend on the specific breach and are governed by other sections of the Migration Act 1958 and the Migration Regulations 1994.