EXPLANATORY STATEMENT
Issued by authority of the Minister for Immigration and Citizenship
Migration (Arrangements for Protection, Refugee and Humanitarian Visas) Amendment (Expanding Internet Lodgement) Instrument 2025
The instrument Migration (Arrangements for Protection, Refugee and Humanitarian Visas) Amendment (Expanding Internet Lodgement) Instrument 2025 (LIN 25/121) is made under and for the purposes of subregulation 2.07(5) and item 1402 of Schedule 1 of the Migration Regulations 1994 (Migration Regulations).
This instrument operates to amend Migration (Arrangements for Protection, Refugee and Humanitarian Visas) Instrument (LIN 20/169) 2020 (LIN 20/169).
Subsection 33(3) of the Acts Interpretation Act 1901 provides 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.
Subregulation 2.07(5) of the Migration Regulations provides that if an item of Schedule 1 to the Migration Regulations prescribes criteria or requirements by reference to a legislative instrument made under that Subregulation, the Minister may, by legislative instrument, specify the following:
- an approved form for making an application for a visa of a specified class;
- the way in which an application for a visa of a specified class must be made;
- the place at which an application for a visa of a specified class must be made; and
- any other matter.
Subitem 1402(1) of Schedule 1 to the Migration Regulations requires an application for the Refugee and Humanitarian (Class XB) visa (Class XB) visa to be made in an approved form specified by the Minister in a legislative instrument made for this item under subregulation 2.07(5) of the Migration Regulations. Paragraph 1402(3)(a) of Schedule 1 provides that an application must be made at the place, and in the manner, (if any) specified by the Minister in a legislative instrument made for this item under subregulation 2.07(5).
The purpose of this instrument is to amend LIN 20/169 to update the arrangements for visa applications for the cohort of applicants to the Class XB visa who are currently required to make their application at a diplomatic, consular, or migration office maintained by or for the Commonwealth outside of Australia.
LIN 25/121 will amend LIN 20/169 to provide for internet lodgement of applications for a Class XB visa through Form 842 (Internet). However, where the application cannot be made as an Internet application and the Department has given written notice authorising the person to do so, the application may alternatively be made using Form 842 and:
- posted with sufficient prepaid postage to a departmental office; or
- emailed to the Department; or
- made at a diplomatic, consular, or migration office maintained by or for the Commonwealth and located outside of Australia.
The instrument also makes a minor technical amendment to repeal section 5 of LIN 20/169. This amendment will clarify that where LIN 20/169 is amended from time to time, those amendments will operate prospectively. Repealed section 5 operated in relation to the principal instrument as made on 11 November 2020. Unless otherwise expressly provided for in a transitional or application provision inserted by the amending instrument, amendments of the principal instrument by an amending instrument operate prospectively on and from the commencement of the amendments, and consistent with Legislation Act 2003.
The instrument supports the Department’s transition to online lodgement for an application for a Class XB visa. Moving towards online lodgement would promote efficient application and ease of application process for both the Department and applicants.
This instrument is covered by the exemption from disallowance provided by table item 20(b) of regulation 10 of the Legislation (Exemptions and Other Matters) Regulations 2015. A Statement of Compatibility with Human Rights is therefore not required.
The Department of Home Affairs (the Department) has consulted with the United Nations High Commissioner for Refugees. The Department did not undertake any further external consultation noting the amendments align with the Department’s existing, long-standing arrangements for online visa application services.
The instrument commences on 29 November 2025.
The instrument will be repealed by operation of Division 1 of Part 3 of Chapter 3 of the Legislation Act 2003 (Legislation Act). That Division (under section 48A) automatically repeals a legislative instrument that has the sole purpose of amending or repealing another instrument. As the instrument will automatically repeal, it does not engage the sunsetting framework under Part 4 of the Legislation Act.
Further details of the instrument are set out in Attachment A.
The Migration Regulations specify no conditions that need to be satisfied before the power to make the instrument may be exercised.
ATTACHMENT A
Details of the Migration (Arrangements for Protection, Refugee and Humanitarian Visas) Amendment (Expanding Internet Lodgement) Instrument 2025
Section 1 – Name of instrument
This section provides that the title of the instrument is the Migration (Arrangements for Protection, Refugee and Humanitarian Visas) Amendment (Expanding Internet Lodgement) Instrument 2025 (LIN 25/121).
Section 2 – Commencement
This section provides the instrument commences on 29 November 2025.
Section 3 – Authority
This section provides that the instrument is made under subregulation 2.07(5) and item 1402 of Schedule 1 to the Migration Regulations 1994 (Migration Regulations)
Section 4 – Schedules
This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Schedule 1 – Amendments
Migration (Arrangements for Protection, Refugee and Humanitarian Visas) Instrument (LIN 20/169) 2020
Item [1] – Section 4
Section 4 of Migration (Arrangements for Protection, Refugee and Humanitarian Visas) Instrument (LIN 20/169) 2020 (LIN 20/169) provides definitions for the terms used in the instrument.
This item inserts the definition for the term Internet application, which is defined to have the meaning given by regulation 1.03 of the Migration Regulations.
For reference, regulation 1.03 of the Migration Regulations defines Internet application as an application for a visa made using a form mentioned in paragraph 1.18(2)(b) of the Migration Regulations that is sent to Immigration by electronic transmission using a facility made available at an Internet site mentioned in subparagraph 1.18(2)(b)(ii), in a way authorised by that facility.
Item [2] – Section 5
This item operates to repeal section 5 of LIN 20/169. The repeal of section 5 of LIN 20/169 is a technical amendment which will clarify the operation of LIN 20/169.
Section 5 provides that the instrument applies to visa applications made on or after the commencement of the instrument. As LIN 20/169 commenced on 12 November 2020, this amendment would clarify that where LIN 20/169 is amended from time to time, those amendments operate prospectively. Repealed section 5 operated in relation to the principal instrument as made on 11 November 2020. Unless otherwise expressly provided for in a transitional or application provision inserted by the amending instrument, amendments of the principal instrument by an amending instrument operate prospectively on and from the commencement of the amendments, and consistent with Legislation Act 2003.
Item [3] – Section 8 (table item 3)
This item repeals table item 3 of section 8 of LIN 20/169 and substitutes new table item 3.
Section 8 of LIN 20/169 is made under subregulation 2.07(5) and item 1402 of Schedule 1 to the Migration Regulations and specifies the form, place and manner for applications for the Refugee and Humanitarian (Class XB) visa (Class XB visa).
Table item 3 – Any other applicant
New table item 3 covers any applicant to the Class XB visa who is not covered by another item of the table. These applicants were previously required to lodge their application for the Class XB visa by making an application using Form 842 at a diplomatic, consular, or migration office maintained by or for the Commonwealth and located outside of Australia.
New table item 3 provides that an applicant in this cohort must make their application for the Class XB visa as an Internet application using Form 842 (Internet).
However, if the application cannot be made as an Internet application, and the Department has given written notice authorising the person to do so, it can be made using Form 842 through one of the following:
- posted with sufficient prepaid postage to a departmental office; or
- emailed to the Department; or
- made at a diplomatic, consular, or migration office by or for the Commonwealth and located outside of Australia.
This item implements online lodgement for a person in the cohort of applicants to the Class XB visa who was previously required to make an application through paper at a diplomatic, consular, or a migration office maintained by or for the Commonwealth and located outside of Australia. The item retains flexibility for the person to make a paper application where the application cannot be made as an Internet application, and the Department has given written notice authorising the person to do so.