EXPLANATORY STATEMENT
Migration Regulations 1994
Migration (Specification of Transit Passengers Having Prescribed Status – Special Purpose Visas) Instrument 2017
(Paragraph 2.40(1)(n))
- Instrument IMMI 17/053 is made under paragraph 2.40(1)(n) of the Migration Regulations 1994 (the Regulations).
2. The Instrument repeals IMMI 15/057 (F2015L00790) under paragraph 2.40(1)(n) of the Regulations and in accordance with subsection 33(3) of the Acts Interpretation Act 1901, which states that where an Act confers a power to make, grant, or issues any instrument of a legislative or administrative character, the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend or vary such an instrument.
3. The Instrument operates for the Minister to specify under paragraph 2.40(1)(n) the classes of persons which a transit passenger must belong to in order to have a prescribed status for the purposes of being granted a special purpose visa.
4. Non-citizens who hold a prescribed status include transit passengers who are citizens of specified foreign countries. This instrument has been updated to also include official passport holders from India as a specified class of persons.
5. Transit passengers from the specified countries are taken to have been granted a Special Purpose Visa and are able to access “Transit Without Visa” arrangements.
6. Consultation was undertaken, prior to the making of the Instrument, with the Department of Foreign Affairs and Trade, the Australian Federal Police and the Australian Security Intelligence Organisation.
7. The Office of Best Practice Regulation has advised that a Regulatory Impact Statement is not required (OBPR Reference 22420).
8. Under section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015, this instrument is exempt from disallowance and therefore a Statement of Compatibility with Human Rights is not required.
9. The instrument commences on the day after it is registered.
Overview
The Migration (Specification of Transit Passengers Having Prescribed Status – Special Purpose Visas) Instrument 2017, enacted in 2017, updates the legislative framework concerning transit passengers from specified countries who are granted special purpose visas under the Migration Regulations 1994. This instrument was created by the Minister for Home Affairs under the authority of the Migration Act 1958, with the primary objective of facilitating smoother transit processes for citizens of certain countries while maintaining stringent security protocols. It repeals the previous instrument, IMMI 15/057, and introduces official passport holders from India as a new class of persons eligible for the special transit visa arrangements, aligning with broader policy objectives of enhancing international cooperation and efficiency in visa processing. The instrument underwent consultation with relevant federal agencies, including the Department of Foreign Affairs and Trade, the Australian Federal Police, and the Australian Security Intelligence Organisation, ensuring its alignment with national security and foreign policy interests.
Scope and Application
The Migration (Specification of Transit Passengers Having Prescribed Status – Special Purpose Visas) Instrument 2017 applies to transit passengers who are citizens of specified foreign countries and official passport holders from India. This instrument is made under the Migration Regulations 1994 and provides a framework for the Minister to specify the classes of persons who qualify for a prescribed status, thereby granting them eligibility for a special purpose visa. This visa allows these transit passengers to benefit from the “Transit Without Visa” arrangements, facilitating smoother transitions through Australian airports. The Instrument operates within the Commonwealth jurisdiction and its reach is confined to the specified categories of persons and the countries listed within its provisions. Notably, the instrument exempts itself from disallowance under section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015, and it does not require a Statement of Compatibility with Human Rights. The instrument takes effect the day after it is registered, ensuring immediate application of the updated specifications.
Key Provisions
The main operative sections of this instrument (F2017L01102) are found within the Migration Regulations 1994, particularly under paragraph 2.40(1)(n). This section of the Regulations empowers the Minister to specify classes of persons who can be granted a prescribed status, enabling them to access special purpose visas, specifically for transit passengers. This instrument (IMMI 17/053) updates the previously existing instrument (IMMI 15/057) by including official passport holders from India as a specified class of persons, alongside citizens of other specified foreign countries. This change allows these individuals to access "Transit Without Visa" arrangements, facilitating their travel through Australia.
The obligations and requirements imposed by this Act on the relevant parties or entities include ensuring that the transit passengers from the specified countries who hold prescribed statuses, such as official passport holders from India, are granted special purpose visas. These visas allow for "Transit Without Visa" arrangements, simplifying the travel process for these individuals. The Minister is required to maintain and update the list of specified classes of persons and countries, ensuring that the transit arrangements remain compliant with current regulations. Furthermore, consultation with relevant authorities such as the Department of Foreign Affairs and Trade, the Australian Federal Police, and the Australian Security Intelligence Organisation is mandated before making any changes to the instrument.
In terms of offences, penalties, or civil/criminal consequences for breach, the instrument itself does not detail specific penalties. However, under the Migration Act 1958, there are general provisions that apply to breaches of the Act, including potential civil and criminal penalties. For instance, section 231 of the Act outlines various offences related to visa breaches, which could result in fines and imprisonment. Additionally, the Immigration (Designation of Countries) Regulations 1994 (subsection 5.03A) provides for the designation of countries for visa purposes, and non-compliance with these regulations can lead to civil and criminal penalties. The specific penalties would depend on the nature and severity of the breach, as outlined in the broader legislative framework.
In conclusion, the key provisions of this instrument focus on updating the classes of persons eligible for special purpose visas, specifically for transit passengers from specified countries. The obligations revolve around ensuring that these individuals are granted the appropriate visas, and relevant authorities are consulted before any changes. While the instrument does not specify penalties, the broader Migration Act and related regulations provide for potential civil and criminal consequences for non-compliance.