EXPLANATORY STATEMENT
Issued by authority of the Minister for Immigration, Citizenship and Multicultural Affairs
Migration Regulations 1994
Migration (Class of persons for associated bridging visa – Partner and Parent visas) Instrument (LIN 23/029) 2023
1 The instrument, Departmental reference LIN 23/029, is made under paragraphs 010.611(1)(c) and 020.611(1)(b) of Schedule 2 to the Migration Regulations 1994 (‘the Migration Regulations’).
2 The instrument repeals Migration Regulations 1994 – Class of Persons – IMMI 12/094 (F2012L02217) 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 the day after registration, and is a legislative instrument for the Legislation Act 2003 (the Legislation Act).
Purpose
4 The instrument specifies the class of persons for the purposes of paragraphs 010.611(1)(c) and 020.611(1)(b) of Schedule 2 to the Migration Regulations. Paragraph 010.611(1)(c) provides that no visa conditions are applicable to a Subclass 010 (Bridging A) visa (BVA) granted to a non-citizen who is a person in a class of persons specified by the Minister in an instrument in writing. Paragraph 020.611(1)(b) provides that no visa conditions are applicable to a Subclass 020 (Bridging B) visa (BVB) granted to a non-citizen who is a person in a class of persons specified by the Minister in an instrument in writing.
5 The class of persons consists of those persons who are granted a BVA or BVB in association with an application for certain Partner and Parent visas which can only be granted to applicants in Australia. The application for the substantive visa must not be finally determined. The effect of this instrument is that paragraphs 010.611(1)(c) and 020.611(1)(b) of Schedule 2 to the Migration Regulations prohibit the application of visa conditions to a BVA or a BVB granted in association with an ongoing Subclass 801 (Partner), Subclass 804 (Aged Parent), Subclass 820 (Partner), Subclass 864 (Contributory Aged Parent), or Subclass 884 (Contributory Aged Parent (Temporary)) visa application.
6 This will mean that applicants for these substantive visas will not be subject to any visa conditions while they hold a BVA or BVB granted in association with those substantive visa applications, meaning that these applicants will continue to be permitted to work and study while they await the outcome of their substantive visa application. This measure will also benefit other bridging visa holders who seek permission to work, in that it will reduce processing volumes and consequently timeframes.
7 The instrument does not affect the arrangements for the visa conditions imposed on BVA or BVB holders prescribed in the remaining subclauses of paragraphs 010.611 and 020.611.
Consultation
8 No consultation was done for this instrument. This is because the instrument substantially replicates what is currently in force, with no change in policy.
9 The Office of Impact Analysis (OIA) (formerly the Office of Best Practice Regulation) was consulted and considered that the instrument dealt with matters of a machinery nature and no regulatory impact statement was required. The OIA reference number is OBPR23-04309.
Details of the instrument
10 Paragraph (a) of the instrument repeals Migration Regulations 1994 – Class of Persons – IMMI 12/094 (F2012L02217).
11 Paragraph (b) of the instrument specifies a class of persons for the purposes of paragraphs 010.611(1)(c) and 020.611(1)(b) of Schedule 2 to the Migration Regulations. A person who is granted a BVA or a BVB will be a member of the class of persons for the relevant paragraph where the BVA or BVB is granted to the person in association with a substantive visa application which has not been finally determined. The substantive visa subclasses include:
- Subclass 801 (Partner);
- Subclass 804 (Aged Parent);
- Subclass 820 (Partner);
- Subclass 864 (Contributory Aged Parent ); and
- Subclass 884 (Contributory Aged Parent (Temporary)).
Parliamentary scrutiny etc.
12 The instrument is exempt from disallowance under section 42 of the Legislation Act. This is because it is a legislative instrument made under Schedule 2 to the Migration Regulations and so it is prescribed in subitem 20(b) of the table in section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015.
13 As the instrument is exempt from disallowance, a Statement of Compatibility with Human Rights is not required.
14 The instrument was made by the Minister of Immigration, Citizenship and Multicultural Affairs, in accordance with paragraphs 010.611(1)(c) and 020.611(1)(b) of Schedule 2 to the Migration Regulations.
Overview
The Migration Regulations 1994 (Class of persons for associated bridging visa – Partner and Parent visas) Instrument (LIN 23/029) 2023 was enacted to address the issue of applying visa conditions to Bridging Visa A (BVA) and Bridging Visa B (BVB) holders while they await the outcome of their substantive visa applications. This instrument specifies the class of persons for whom no visa conditions apply to their BVA or BVB, which includes applicants for certain Partner and Parent visas who can only be granted to applicants in Australia. This measure was introduced to ensure that these applicants can continue to work and study while they wait for their substantive visa applications to be finalised, thus maintaining their employment and educational opportunities without the constraints of visa conditions. The instrument was made under the authority of the Minister for Immigration, Citizenship and Multicultural Affairs and serves to align with the existing policy framework without altering its fundamental principles.
Scope and Application
The instrument, identified as LIN 23/029 and made under paragraphs 010.611(1)(c) and 020.611(1)(b) of Schedule 2 to the Migration Regulations 1994, pertains specifically to the class of non-citizens who are granted a Bridging A (BVA) or Bridging B (BVB) visa in association with an application for certain Partner and Parent visas, which can only be granted to applicants in Australia. This class of persons includes those whose applications for a substantive visa, such as Subclass 801 (Partner), Subclass 804 (Aged Parent), Subclass 820 (Partner), Subclass 864 (Contributory Aged Parent), or Subclass 884 (Contributory Aged Parent (Temporary)), have not been finally determined. The instrument aims to ensure that visa conditions do not apply to BVAs or BVBs granted in association with these ongoing substantive visa applications. Consequently, applicants for these substantive visas will be permitted to work and study while awaiting the outcome of their applications without being subject to any visa conditions. The instrument operates nationally, aligning with the federal scope of the Migration Regulations 1994. It is noteworthy that this legislative instrument does not alter the visa conditions imposed on BVA or BVB holders as prescribed in other subclauses of paragraphs 010.611 and 020.611. The instrument repeals the previous instrument, IMMI 12/094 (F2012L02217), and is exempt from disallowance under the Legislation Act 2003, thus negating the requirement for a Statement of Compatibility with Human Rights.
Key Provisions
The primary operative sections of the Migration (Class of persons for associated bridging visa – Partner and Parent visas) Instrument (LIN 23/029) are found in paragraphs 010.611(1)(c) and 020.611(1)(b) of Schedule 2 to the Migration Regulations 1994. These sections specify that no visa conditions apply to Subclass 010 (Bridging A) and Subclass 020 (Bridging B) visas granted to non-citizens in a particular class of persons. These visas are granted in association with applications for certain Partner and Parent visas, including Subclass 801 (Partner), Subclass 804 (Aged Parent), Subclass 820 (Partner), Subclass 864 (Contributory Aged Parent), and Subclass 884 (Contributory Aged Parent (Temporary)) visas. This means that while applicants hold these bridging visas, they are not subject to any visa conditions, thereby allowing them to continue working and studying in Australia while they await the final decision on their substantive visa application.
The Act imposes specific obligations and requirements on the parties involved. Firstly, the instrument applies to non-citizens who have been granted a Subclass 010 or Subclass 020 visa in association with an ongoing application for a substantive visa. These bridging visas must be granted to applicants who are in Australia and have applied for one of the specified Partner or Parent visas. Additionally, the substantive visa application must not have been finally determined at the time of granting the bridging visa. This ensures that the bridging visa is granted solely in connection with the ongoing substantive visa application process.
In terms of penalties and consequences for breach, the Act does not explicitly outline specific offences or penalties within the instrument itself. However, the general provisions of the Migration Act 1958 (Cth) and the Migration Regulations 1994 would apply to any breaches of visa conditions or unauthorised work or study activities. Penalties for breaches of these provisions can include fines, imprisonment, and the cancellation of visas. The maximum penalties for breaches can vary depending on the specific offence, but they can include fines of up to $66,600 and imprisonment for up to 5 years for serious offences.
The instrument is exempt from disallowance under section 42 of the Legislation Act, meaning that it does not require parliamentary scrutiny before it comes into effect. This exemption is due to the instrument being made under Schedule 2 to the Migration Regulations and being prescribed in the Legislation (Exemptions and Other Matters) Regulation 2015. Consequently, a Statement of Compatibility with Human Rights is not required for this instrument. The Minister of Immigration, Citizenship and Multicultural Affairs has the authority to make this legislative instrument under paragraphs 010.611(1)(c) and 020.611(1)(b) of Schedule 2 to the Migration Regulations.