EXPLANATORY STATEMENT
Issued by authority of the Minister for Immigration, Citizenship and Multicultural Affairs
Migration Regulations 1994
Migration (Arrangements for Other Visas) Amendment Instrument (LIN 23/012) 2023
1 The instrument, Departmental reference LIN 23/012, is made under subregulation 2.07(5) of the Migration Regulations 1994 (the Migration Regulations) for subitem 1127A(1) of Schedule 1 to the Migration Regulations.
2 The instrument amends Migration (IMMI 18/089: Arrangements for Other Visas) Instrument 2018 (IMMI 18/089) in accordance with subsection 33(3) of the Acts Interpretation Act 1901. 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.
3 The instrument commences on the start of the day after the instrument is registered and is a legislative instrument for the purposes of the Legislation Act 2003 (the Legislation Act).
Purpose
4 Subregulation 2.07(5) of the Migration Regulations provides that if an item of Schedule 1 prescribes criteria or requirements by reference to a legislative instrument made under subregulation 2.07(5), the Minister may, by legislative instrument, specify an approved form for making an application for a visa of a specified class; the way in which an application must be made; the place at which it must be made; and any other matter.
5 Paragraph 1127AA(3)(a) of Schedule 1 to the Regulations provides that an application for a Resolution of Status (Class CD) visa (RoS visa) must be made at the place and in the manner specified by the Minister in a legislative instrument made for that item under subregulation 2.07(5) of the Migration Regulations.
6 The instrument amends IMMI 18/089 to provide that an application for a RoS visa must be made by completing the relevant internet form or, upon written authorisation by an officer of the Department of Home Affairs, by posting the application to a specified address of the Department.
7 The instrument is intended to support the Government’s policy of transitioning certain persons who hold or have held a Subclass 785 (Temporary Protection) visa or a Subclass 790 (Safe Haven Enterprise) visa to a RoS visa. The instrument will enable those persons to apply for a RoS visa by directing their applications to a specified address of the Department of Home Affairs.
Consultation
8 No consultation was done for this instrument. This is because the amendments made by this instrument are of a technical and administrative nature and would not benefit from consultation.
9 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 OBPR22-03791.
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 the day after the instrument is registered.
12 Section 3 provides that Schedule 1 to the instrument amends IMMI 18/089.
13 Item 1 of Schedule 1 inserts a definition for the Department’s interactive portal for online services (ImmiAccount).
14 Item 2 of Schedule 1 substitutes section 7 of IMMI 18/089 with a new provision stating that an application for a RoS visa must be made by completing approved form 1364 (Internet) and making an Internet application, or by completing form 1364 and posting the application to the specified address if the applicant has been authorised to do so by an officer of the Department.
15 Item 3 of Schedule 1 repeals Schedule 2 to IMMI 18/089.
Parliamentary scrutiny etc.
16 The instrument is exempt from disallowance under section 42 of the Legislation Act. This is because it is an instrument made under Part 2 of the Migration Regulations, which is prescribed by subitem 20(b) of the table in section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015.
17 The instrument was made by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs, in accordance with subregulation 2.07(5) of the Migration Regulations.
Overview
The Migration (Arrangements for Other Visas) Amendment Instrument (LIN 23/012) 2023 was enacted to amend the Migration (Arrangements for Other Visas) Instrument 2018, specifically to update the application processes for a Resolution of Status (Class CD) visa. This amendment was made under subregulation 2.07(5) of the Migration Regulations 1994, with the aim of facilitating the transition of individuals holding or having held a Subclass 785 (Temporary Protection) visa or a Subclass 790 (Safe Haven Enterprise) visa to a RoS visa. The instrument, which is a legislative instrument for the purposes of the Legislation Act 2003, allows applications for a RoS visa to be submitted either by completing the relevant internet form or, with written authorisation from an officer of the Department of Home Affairs, by posting the application to a specified address. This amendment streamlines the application process and provides flexibility for applicants, while ensuring that the applications are directed to the correct department. The instrument was made by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs and is exempt from disallowance under the Legislation Act.
Scope and Application
The Migration (Arrangements for Other Visas) Amendment Instrument (LIN 23/012) 2023 amends the Migration (IMMI 18/089: Arrangements for Other Visas) Instrument 2018 under the authority of the Minister for Immigration, Citizenship and Multicultural Affairs. This amendment is made pursuant to subregulation 2.07(5) of the Migration Regulations 1994, which allows the Minister to specify criteria and requirements for making visa applications through legislative instruments. Specifically, the instrument modifies the procedures for applying for a Resolution of Status (Class CD) visa, allowing applicants to submit their applications either through the Department's online portal or by posting a completed application form to a specified address if they have obtained written authorisation from an officer of the Department of Home Affairs. The instrument aims to facilitate the transition of certain individuals holding or who have held a Subclass 785 (Temporary Protection) visa or a Subclass 790 (Safe Haven Enterprise) visa to a RoS visa. The changes outlined in this instrument are technical and administrative, and no consultation was deemed necessary as they do not warrant public input. The instrument commences on the day after it is registered and is exempt from disallowance under the Legislation Act 2003.
Key Provisions
The Migration (Arrangements for Other Visas) Amendment Instrument (LIN 23/012) 2023 primarily revises the way in which an application for a Resolution of Status (RoS) visa must be made (item 2 of Schedule 1). Under the amended arrangements, an application for a RoS visa must now be made either by completing the relevant internet form, specifically form 1364, and making an internet application, or by completing form 1364 and posting the application to the specified address if the applicant has received written authorisation from an officer of the Department of Home Affairs (section 7 of IMMI 18/089, as amended). This amendment aims to streamline the application process for certain visa holders transitioning to an RoS visa.
The obligations imposed by the Amendment Instrument are quite specific, primarily concerning the method and location of application submission for a RoS visa. Applicants must either complete and submit form 1364 via the internet or, if authorised, submit the completed form by post to a specified address of the Department of Home Affairs. This requirement applies to those who hold or have held a Subclass 785 (Temporary Protection) visa or a Subclass 790 (Safe Haven Enterprise) visa, as they are the primary beneficiaries of this legislative change.
Non-compliance with the stipulated application procedures could potentially lead to administrative consequences. Although the Amendment Instrument does not explicitly outline specific offences, penalties, or consequences for breach, the failure to adhere to the prescribed application methods might result in the application being deemed invalid or delayed. Such outcomes could have significant implications for the visa applicants, potentially affecting their legal status and rights under Australian immigration law.