EXPLANATORY STATEMENT
Issued by authority of the Minister of Immigration, Citizenship and Multicultural Affairs
Migration Regulations 1994
Migration (Class of persons for Visitor (Class FA) visa nil VAC) Repeal (LIN 23/069) Instrument 2023
1 The instrument, departmental reference LIN 23/069, is made under subparagraph 1236(2)(a)(iv) of Schedule 1 to the Migration Regulations 1994 (the Migration Regulations).
2 The instrument repeals 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 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 day after registration on the Federal Register of Legislation (FRL). The instrument is a legislative instrument for the purposes of the Legislation Act 2003 (the Legislation Act).
Purpose
4 Subitem 1236(2) of Schedule 1 to the Migration Regulations sets out the amount of the visa application charge (VAC) payable by an applicant for a Visitor (Class FA) visa. Under subparagraph 1236(2)(a)(iv) of Schedule 1 to the Migration Regulations, in relation to an application for a Subclass 600 (Visitor) visa that is not in the Frequent Traveller stream, the Minister may, in an instrument in writing, specify a class of persons for whom the first instalment of the VAC is nil. There is no second instalment for an application for a Visitor (Class FA) visa.
5 LIN 21/021 specifies that certain former Subclass 600 (Visitor) visa holders could apply for a new Subclass 600 visa with a nil VAC, where their travel to Australia was affected by the
COVID-19 Pandemic. The specified period within which Subclass 600 (Visitor) visa applicants could make a valid application without paying a VAC ended on 31 December 2022.
6 The purpose of LIN 23/069 is to repeal LIN 21/021, as the instrument is spent, and no longer required.
Consultation
7 The Office of Impact Analysis (OIA) was consulted and considered that the measures in this instrument are unlikely to have more than a minor impact, as LIN 21/021 is spent. Therefore an Impact Analysis is not required. The OIA reference number is OIA23-05310.
Parliamentary scrutiny etc.
8 The instrument is exempt from disallowance under section 42 of the Legislation Act. This is because it is an instrument made under subparagraph 1236(2)(a)(iv) of Schedule 1 to the Migration Regulations. An instrument made under Schedule 1 to the Migration Regulations is exempt from disallowance under subitem 20(b) of the table in section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015.
9 As the instrument is exempt from disallowance, a Statement of Compatibility with Human Rights is not required.
10 Section 48A of the Legislation Act relevantly provides for the automatic repeal of amending and repealing instruments in certain circumstances. The only legal effect of LIN 23/069 is to repeal the legislative instrument LIN 21/021, and without making any application, saving or transitional provisions relating to the repeal of LIN 21/021. Subsection 48A(1) of the Legislation Act therefore operates to repeal LIN 23/069, with subsections 48A(2) and (3) of the Legislation Act providing for the time and effect of this repeal.
11 The instrument was made by a delegate of the Minister, in accordance with subparagraph 1236(2)(a)(iv) of Schedule 1 to the Migration Regulations.
Overview
The instrument F2023L01668, referred to as the Migration (Class of persons for Visitor (Class FA) visa nil VAC) Repeal (LIN 23/069) Instrument 2023, was enacted to repeal the earlier legislative instrument LIN 21/021, which was introduced to provide certain former Subclass 600 (Visitor) visa holders the ability to apply for a new visa with a nil visa application charge (VAC) due to travel disruptions caused by the COVID-19 pandemic. This repeal is pursuant to subparagraph 1236(2)(a)(iv) of Schedule 1 to the Migration Regulations 1994, and was authorised by the Minister of Immigration, Citizenship and Multicultural Affairs under the authority of the Migration Act 1958. The primary objective of this repeal was to address the outdated nature of LIN 21/021, as its specified period of application expired on 31 December 2022, rendering it no longer necessary.
Scope and Application
The F2023L01668 instrument, known as the Migration (Class of persons for Visitor (Class FA) visa nil VAC) Repeal (LIN 23/069) Instrument 2023, is a legislative instrument made under subparagraph 1236(2)(a)(iv) of Schedule 1 to the Migration Regulations 1994. This instrument repeals the Migration (Class of persons for Visitor (Class FA) visa nil VAC) Instrument (LIN 21/021) 2021, which previously allowed certain former Subclass 600 (Visitor) visa holders to apply for a new visa without paying the first instalment of the visa application charge due to the impact of the COVID-19 pandemic on their travel to Australia. The repeal takes effect from the day after the instrument is registered on the Federal Register of Legislation, and the instrument itself is exempt from disallowance and does not require a Statement of Compatibility with Human Rights. The instrument was made by a delegate of the Minister in accordance with the relevant provisions of the Migration Regulations, and its repeal is automatic under the Legislation Act 2003.
Key Provisions
The primary operative sections of the instrument, LIN 23/069, are detailed in section 2, which specifies the repeal of LIN 21/021, and section 10, which outlines the commencement of the instrument. Section 2 makes clear that LIN 23/069 serves to repeal LIN 21/021, which previously allowed certain former Subclass 600 (Visitor) visa holders to apply for a new visa with a nil visa application charge (VAC) due to travel disruptions caused by the COVID-19 pandemic. Section 10 indicates that the instrument commences on the day after its registration on the Federal Register of Legislation (FRL), making it a legislative instrument under the Legislation Act 2003.
The instrument imposes specific obligations on the entities it governs, primarily through the repeal of LIN 21/021. This repeal signifies that the temporary measure allowing certain individuals to apply for a Subclass 600 visa without paying the first instalment of the VAC is no longer applicable. As a result, any new applications for a Subclass 600 visa, where the travel was not affected by the COVID-19 pandemic, must now comply with the standard VAC requirements. The repeal also affects the administrative processes for visa applications, ensuring that the Department of Home Affairs no longer processes applications under the conditions specified in LIN 21/021.
There are no direct offences, penalties, or civil/criminal consequences associated with the breach of the provisions in LIN 23/069, as the instrument itself is a repeal and does not introduce new regulatory requirements or prohibitions. However, the repeal of LIN 21/021 means that any ongoing applications or pending decisions made under the now-repealed instrument might be subject to the general provisions of the Migration Regulations 1994 and other relevant legislation. The primary consequence of the repeal is the cessation of the nil VAC condition for certain visa applicants, aligning with the standard VAC requirements for all Subclass 600 visa applicants moving forward.