EXPLANATORY STATEMENT
Issued by authority of the Minister for Immigration, Citizenship and Multicultural Affairs
Migration Regulations 1994
Migration (Arrangements for Refugee and Humanitarian (Class XB) visas) Amendment Instrument (LIN 22/060) 2022
1 The instrument, Departmental reference LIN 22/060, is made under subregulation 2.07(5) of the Migration Regulations 1994 (the Regulations).
2 The instrument amends Migration (Arrangements for Protection, Refugee and Humanitarian Visas) Instrument 2020 (LIN 20/169) 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.
3 The instrument commences on 10 June 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 place and manner for making an application for Refugee and Humanitarian (Class XB) visa (Class XB visa). The Class XB visa includes the Subclass 200 (Refugee) visa, Subclass 201 (In-country Special Humanitarian) visa, Subclass 202 (Global Special Humanitarian) visa, Subclass 203 (Emergency Rescue) visa and the Subclass 204 (Woman at Risk) visa.
5 Previously, certain applicants for a Class XB visa could lodge their application by courier service at the Special Humanitarian Processing Centre on Lee Street. As the Lee Street office will be vacated at the end of June 2022, this instrument removes the option to lodge Class XB visa applications at that location.
6 Removing the direct courier option also aligns with Departmental client service practice for other visa applications.
Consultation
7 No consultation was undertaken as the amendments do not substantially alter existing arrangements. This accords with subsection 17(1) of the Legislation Act.
8 The Office of Best Practice Regulation (OBPR) was consulted and considered that the instrument dealt with matters of a minor nature and no regulatory impact statement was required. The OBPR reference number is 22-01831.
Details of the instrument
9 Section 1 sets out the name of the instrument.
10 Section 2 provides for the commencement of the instrument on 10 June 2022.
11 Section 3 provides that LIN 20/169 is amended as set out in Schedule 1 to the instrument.
12 Item 1 of Schedule 1 omits paragraph (b) of column 3 of item 1 of the table in section 8. This removes the option to submit a Class XB visa application by courier directly to the Special Humanitarian Processing Centre, Department of Home Affairs, Level 3, 26 Lee Street, Sydney. As the Special Humanitarian Processing Centre’s post office box will remain operational, an applicant will still be able to lodge by courier to the post office box address specified in LIN 20/169 for Class XB applications, if they use a courier service affiliated with Australia Post.
13 This change affects applicants whose entry to Australia has been proposed in accordance with form 681 or form 1417. In practice, these are applicants for a Class XB visa who:
- are proposed for entry by an Australian citizen, an Australian permanent resident, an eligible New Zealand citizen, a body operating in Australia, or an approved proposing organisation; or
- are proposed for humanitarian entry by an Australian citizen or Australian permanent resident who holds or held a Class XB visa, Protection (Class XA) visa or Resolution of Status (Class CD) visa, and are a member of the immediate family of their proposer.
Parliamentary scrutiny etc.
14 The instrument is exempt from disallowance under section 42 of the Legislation Act. This is because instruments made under Part 2 and Schedule 1 to the Regulations are prescribed as exempt by 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 was made by a delegate of the Minister in accordance with subregulation 2.07(5) of the Regulations.
Overview
The Migration (Arrangements for Protection, Refugee and Humanitarian Visas) Amendment Instrument (LIN 22/060) 2022, made under subregulation 2.07(5) of the Migration Regulations 1994, was enacted to address the need to update the approved place for lodging applications for Refugee and Humanitarian (Class XB) visas, including Subclass 200, 201, 202, 203, and 204 visas. This amendment is necessary due to the vacating of the Special Humanitarian Processing Centre on Lee Street by the end of June 2022, which previously allowed applicants to submit their applications by courier directly to that location. The policy objective behind this instrument is to align with Departmental client service practices for other visa applications by removing the direct courier option, although the Special Humanitarian Processing Centre’s post office box will remain operational for such applications. The instrument, which came into effect on 10 June 2022, was made by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs, and is exempt from disallowance under the Legislation Act 2003.
Scope and Application
The Migration (Arrangements for Refugee and Humanitarian (Class XB) visas) Amendment Instrument (LIN 22/060) pertains to individuals applying for Refugee and Humanitarian (Class XB) visas, which include Subclass 200 (Refugee) visas, Subclass 201 (In-country Special Humanitarian) visas, Subclass 202 (Global Special Humanitarian) visas, Subclass 203 (Emergency Rescue) visas, and Subclass 204 (Woman at Risk) visas. This amendment applies to those proposing to enter Australia under forms 681 or 1417, namely applicants proposed by an Australian citizen, permanent resident, eligible New Zealand citizen, an operating body in Australia, or an approved proposing organisation, as well as those proposed for humanitarian entry by an Australian citizen or permanent resident holding a relevant visa and who are a member of the proposer's immediate family. The amendment operates within the Commonwealth jurisdiction and replaces the previous requirement to submit applications by courier to the Special Humanitarian Processing Centre on Lee Street in Sydney, with effect from 10 June 2022. This change aligns with departmental practices for other visa applications and maintains the option for applicants to submit their applications via the Special Humanitarian Processing Centre's post office box if using a courier service affiliated with Australia Post. The instrument exempts itself from disallowance under section 42 of the Legislation Act, as it pertains to administrative updates within the migration policy framework.
Key Provisions
The main operative sections of this instrument (referred to as LIN 22/060) are those that specify the amendments to the Migration (Arrangements for Protection, Refugee and Humanitarian Visas) Instrument 2020 (LIN 20/169) (section 3) and the commencement date of the instrument (section 2). Specifically, section 3 amends LIN 20/169 to remove the option for applicants to submit Class XB visa applications by courier directly to the Special Humanitarian Processing Centre on Lee Street, Sydney, which will close at the end of June 2022. This change is detailed in Schedule 1, Item 1 of the instrument.
The obligations and requirements imposed by the instrument primarily concern the process of lodging applications for Class XB visas. Under the amended regulations, applicants for a Class XB visa must now submit their applications using a different method, specifically through the post office box address for Class XB applications if using a courier service affiliated with Australia Post. This change affects applicants who are proposed for entry by certain categories of persons, as outlined in the explanatory statement. The instrument ensures that the process of lodging visa applications is consistent with Departmental client service practices for other visa applications.
In terms of consequences for non-compliance, the instrument does not explicitly state any offences, penalties, or civil/criminal consequences for breaching the requirements of the amended regulations. However, failure to comply with the specified process for lodging a Class XB visa application may result in delays or the refusal of an application. It is important for applicants to adhere to the updated requirements to ensure a smooth and timely application process.
The instrument is exempt from disallowance under section 42 of the Legislation Act, as it falls within the category of instruments that are prescribed as exempt by section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015. This exemption is due to the administrative nature of the changes made to the regulations, which allow for consistent internal management of the migration policy framework in accordance with Departmental resources and arrangements. The instrument was made by a delegate of the Minister in accordance with subregulation 2.07(5) of the Migration Regulations 1994.