EXPLANATORY STATEMENT
Issued by authority of the Minister for Immigration, Citizenship, Migrant Services and
Multicultural Affairs
Migration Act 1958
Migration Regulations 1994
Migration (Class of persons for Visitor (Class FA) visa nil VAC) Amendment Instrument (LIN 21/033) 2021
1 The instrument, Departmental reference LIN 21/033, is made under 1236(2)(a)(iv) of Schedule 1 to the Migration Regulations 1994 (the Migration Regulations).
2 The instrument amends Migration (Class of persons for Visitor (Class FA) visa nil VAC) Instrument (LIN 21/021) 2021 (LIN 21/021) in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (the Acts Interpretation Act). That subsection provides that where an Act confers a power to make a legislative instrument, the power includes a power to amend or repeal that instrument, subject to any conditions that apply to the initial instrument-making power.
3 The instrument is commences on 27 February 2021 retrospectively, and is a legislative instrument for the Legislation Act 2003 (the Legislation Act).
Purpose
4 The purpose of the instrument is to clarify the types of former Subclass 600 (Visitor) visa (Subclass 600 visa) holders who can apply for a new Subclass 600 visa with a nil visa application charge (VAC) where their travel to Australia has been affected by the COVID-19 pandemic.
5 Under subparagraph 1236(2)(a)(iv) of Schedule 1 to the Migration Regulations, the Minister may specify a class of persons who are applicants with a nil VAC amount for Visitor (Class FA) visas, which includes Subclass 600 visas. The instrument amends LIN 21/021 to clarify the applicants for a Subclass 600 visa who are in a class of person for a nil VAC.
Consultation
6 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 42822.
7 Consultation was not done for this instrument. This is because the changes are minor and machinery in nature and do not substantially alter the existing arrangements.
Details of the instrument
8 Section 1 sets out the name of the instrument.
9 Section 2 provides that the instrument is taken to have commenced on 27 February 2021. Any retrospective application of the instrument is permitted as the instrument confers a benefit of applying for a visa without having to pay VAC to the specified class of persons (see subsections 12(1A) and (2) of the Legislation Act).
10 Section 3 provides the LIN 21/021 is amended as set out in Schedule 1 to the instrument.
11 Section 4 of LIN 21/021 provides that an applicant for a Subclass 600 visa will not pay a VAC if all the circumstances specified in that section apply to the applicant.
12 Item 1 of Schedule 1 to the instrument amends paragraph 4(c) of LIN 21/021. That paragraph provides that for an applicant to receive a nil VAC they must have been granted a Subclass 600 visa while outside of Australia before 21 March 2020. This excluded visas granted in the Frequent Traveller stream.
13 Item 1 of Schedule 1 to the instrument amends paragraph 4(c) of LIN 21/021 to remove the limitation on former Subclass 600 visa holders in the Frequent Traveller steam from being eligible for a nil VAC when making an application in accordance with LIN 21/021. Former visa holders in the Frequent Traveller stream must meet all other elements specified in LIN 21/021 to receive a nil VAC.
Parliamentary scrutiny etc.
14 The instrument is exempt from disallowance under section 42 of the Legislation Act. This is because instruments made under Schedule 1 of the Migration Regulations are prescribed as exempt in section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015.
15 The instrument was made by a delegate of the Minister, Senior Executive Service Band One, Immigration Programs Division, in accordance with subparagraph 1236(2)(a)(iv) of Schedule 1 to the Migration Regulations. The Senior Executive Service Band One was delegated the power to make the instrument by the Minister for Home Affairs.
Overview
The Migration (Class of persons for Visitor (Class FA) visa nil VAC) Amendment Instrument (LIN 21/033) 2021 was enacted to amend the Migration (Class of persons for Visitor (Class FA) visa nil VAC) Instrument (LIN 21/021) 2021. This amendment was made under the authority of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and is pursuant to the provisions of the Migration Act 1958 and the Migration Regulations 1994. The primary objective of this legislative instrument was to address a specific gap in the eligibility criteria for former Subclass 600 visa holders applying for a new Subclass 600 visa with a nil visa application charge (VAC) due to disruptions caused by the COVID-19 pandemic. This instrument sought to clarify the eligibility of former Subclass 600 visa holders, including those in the Frequent Traveller stream, for the nil VAC, ensuring that these individuals are not inadvertently excluded from this benefit.
Scope and Application
The Migration (Class of persons for Visitor (Class FA) visa nil VAC) Amendment Instrument (LIN 21/033) 2021 applies to former Subclass 600 visa holders affected by the COVID-19 pandemic, clarifying their eligibility for a new Subclass 600 visa with a nil visa application charge (VAC). This instrument amends the Migration (Class of persons for Visitor (Class FA) visa nil VAC) Instrument (LIN 21/021) 2021 by removing the limitation on former Subclass 600 visa holders in the Frequent Traveller stream from being eligible for a nil VAC when applying for a new Subclass 600 visa, provided they meet other specified conditions. The instrument has a national reach as it pertains to the Commonwealth of Australia and is made under the Migration Regulations 1994, which are part of the Migration Act 1958. The instrument is exempt from disallowance under section 42 of the Legislation Act 2003 and was made by a delegate of the Minister, specifically a Senior Executive Service Band One from the Immigration Programs Division, in accordance with the provisions of the Migration Regulations.
Key Provisions
The Migration (Class of persons for Visitor (Class FA) visa nil VAC) Amendment Instrument (LIN 21/033) 2021 amends the Migration (Class of persons for Visitor (Class FA) visa nil VAC) Instrument (LIN 21/021) 2021 to clarify the eligibility of former Subclass 600 visa holders to apply for a new Subclass 600 visa with a nil visa application charge (VAC). This change is particularly significant in light of the COVID-19 pandemic, which has affected international travel. The instrument amends the eligibility criteria by removing the exclusion for former Subclass 600 visa holders in the Frequent Traveller stream. This means that individuals who were previously granted a Subclass 600 visa in the Frequent Traveller stream, regardless of whether they were outside or inside Australia at the time, are now eligible to apply for a new Subclass 600 visa with a nil VAC.
Under the amended instrument, an applicant for a Subclass 600 visa will not pay a VAC if all the specified circumstances in section 4 of LIN 21/021 apply. The primary requirement is that the applicant must have been granted a Subclass 600 visa while outside of Australia before 21 March 2020. The amendment ensures that former visa holders in the Frequent Traveller stream are not excluded from this benefit and must meet all other specified criteria to receive a nil VAC. This includes conditions such as having a valid travel document, intending to stay in Australia for a temporary purpose, and not being subject to certain health or character requirements that would disqualify them from a visa.
The instrument imposes obligations on applicants to ensure they meet all the eligibility criteria specified in LIN 21/021. This involves providing accurate and complete information about their previous visa status, travel history, and intentions for the new visa application. Failure to meet these requirements could result in the application being denied, and the applicant being liable to pay the VAC. The Department of Home Affairs may also require additional documentation or information to verify the applicant's eligibility.
There are no specific offences, penalties, or consequences outlined in the instrument for failing to meet the eligibility criteria. However, if an applicant is found to have provided false or misleading information, they could face consequences under other sections of the Migration Act 1958, which include civil or criminal penalties. For instance, providing false or misleading information to obtain a visa could result in fines or imprisonment. Additionally, any attempt to fraudulently claim a nil VAC where the applicant does not meet the eligibility criteria could lead to more severe penalties under the Commonwealth criminal code.