EXPLANATORY STATEMENT
Issued by authority of the Minister for Immigration, Citizenship and Multicultural Affairs
Migration Regulations 1994
Migration (Health Criteria—Specified Countries) (LIN 23/071) Specification 2023
1 The instrument, departmental reference LIN 23/071, is made under paragraph 2.25A(1)(b) of the Migration Regulations 1994 (the Migration Regulations).
2 The instrument repeals Migration Regulations 1994 – Specification of Countries – IMMI 13/161 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 LIN 23/071 commences on the day after it is registered on the Federal Register of Legislation. It is a legislative instrument for the Legislation Act 2003 (the Legislation Act).
Purpose
4 Subregulation 2.25A(1) provides that the Minister must seek the opinion of a Medical Officer of the Commonwealth in determining whether a visa applicant or another person meets the requirements of paragraphs 4005(1)(a), 4005(1)(b), 4005(1)(c), 4007(1)(a), 4007(1)(b) or 4007(1)(c) of Schedule 4 to the Migration Regulations.
5 However, pursuant to paragraph 2.25A(1)(b), if the application is for a permanent visa made from a country specified in a legislative instrument made for the purposes of that paragraph, and there is no information known to the Department (either through the application or otherwise) to the effect that the person may not meet any of those requirements, the Minister does not need to seek the opinion of a Medial Officer of the Commonwealth.
6 Schedule 1 to LIN 23/071 specifies all countries in the world for the purposes of paragraph 2.25A(1)(b). The purpose of the instrument is to streamline visa processing for applicants who do not have tuberculosis, or a disease or condition that may pose a threat to public health, or whose presence in Australia would be likely to require health care or community services where the provision of that service would be likely to result in a significant cost to the Australian community, or prejudice the access of Australians to health services or procedures that are short in supply.
Consultation
7 The instrument does not substantially alter the existing arrangements in IMMI 13/161, other than making minor updates to reflect current country names at the time the instrument was made. The country names listed in the Schedule to the instrument are aligned with country names as they appear on the Department of Foreign Affairs and Trade website (www.dfat.gov.au). As the instrument does not substantially alter existing arrangements, and provides continuity and support for effective visa processing and the assessment of health criteria, no external consultation was considered necessary.
8 The Office of Impact Analysis (OIA) was consulted. The OIA considered that the instrument dealt with matters of a minor nature and no Impact Analysis was required. The OIA reference number is OIA23-05375.
Parliamentary scrutiny etc.
9 The instrument is exempt from disallowance under section 42 of the Legislation Act, as an instrument made under Part 2 of the Migration Regulations is prescribed as exempt by item 20 of section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015.
10 The instrument was made by the Minister for Immigration, Citizenship and Multicultural Affairs in accordance with paragraph 2.25A(1)(b) of the Migration Regulations.
Overview
The Migration Regulations 1994 (Migration Regulations) were enacted to establish a framework for the administration of Australia's migration laws. The 2023 legislative instrument, "Migration (Health Criteria—Specified Countries) (LIN 23/071) Specification," was introduced to address the need for a streamlined process in assessing health criteria for visa applicants from specified countries, where there is no information suggesting that the applicant may not meet the health requirements. This legislative instrument, made by the Minister for Immigration, Citizenship and Multicultural Affairs, aims to enhance efficiency in visa processing by reducing the necessity for medical assessments in cases where no adverse health information is known. The policy objective is to ensure the integrity of Australia's health and community service systems while facilitating the timely processing of visa applications.
Scope and Application
The Migration (Health Criteria—Specified Countries) (LIN 23/071) Specification 2023, made under the authority of the Minister for Immigration, Citizenship and Multicultural Affairs, applies to all visa applicants from countries listed in Schedule 1, which encompasses all nations globally. This legislative instrument operates under the Migration Regulations 1994, specifically addressing health criteria for visa applicants to streamline the visa processing system. It exempts visa applicants from specified countries, who do not have tuberculosis or any other health conditions that could pose a public health risk, from needing a health assessment by a Medical Officer of the Commonwealth, provided no adverse information is known to the Department. This approach aims to facilitate quicker processing for applicants deemed low risk based on their country of origin. The instrument replaces the previous Migration Regulations 1994 – Specification of Countries – IMMI 13/161, aligning country names with those listed on the Department of Foreign Affairs and Trade website to ensure accuracy and consistency. The instrument is exempt from disallowance and does not require parliamentary scrutiny, as it is classified under the exempt category of legislative instruments under the Legislation (Exemptions and Other Matters) Regulation 2015.
Key Provisions
The primary operative sections of this instrument, LIN 23/071, pertain to the specification of countries under paragraph 2.25A(1)(b) of the Migration Regulations 1994 (subsection 2). This section outlines the criteria under which the Minister for Immigration, Citizenship and Multicultural Affairs may not need to seek the opinion of a Medical Officer of the Commonwealth regarding a visa applicant's health status. Specifically, if the visa application is for a permanent visa from a country specified in the instrument and no information suggests the applicant may not meet health criteria, the Minister can bypass consulting a Medical Officer (subsection 5). Schedule 1 to LIN 23/071 lists all countries globally for these purposes, aiming to streamline visa processing for applicants deemed to pose no public health risk (subsection 6).
The instrument imposes several obligations and requirements on the parties it governs. The Minister for Immigration, Citizenship and Multicultural Affairs must ensure that the specified countries in Schedule 1 are correctly aligned with current country names as listed on the Department of Foreign Affairs and Trade website (subsection 7). This requirement ensures that the instrument's application is consistent and accurate. Additionally, the instrument mandates that no external consultation is necessary due to its minor updates and alignment with existing arrangements, which support effective visa processing and health criteria assessment (subsection 7). The Office of Impact Analysis (OIA) was consulted, and it deemed the instrument minor, requiring no Impact Analysis (subsection 8).
For breaches or non-compliance with the requirements set out in this instrument, there are potential consequences. The instrument is exempt from disallowance under section 42 of the Legislation Act, as it falls under the category of instruments prescribed as exempt by item 20 of section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015 (subsection 9). This means that the instrument's provisions cannot be overturned by disallowance. However, the instrument's purpose is to streamline visa processing, and any failure to comply with its specifications could potentially lead to delays or complications in visa applications, although no specific penalties are mentioned in the text.