Overview

The Migration (IMMI 17/126: Impairment Rating) Instrument 2017 was enacted to maintain the impairment rating specified for carers applying for visas under the Migration Regulations 1994. This instrument was introduced to ensure that the impairment rating for such carers remains consistent with previous legislation, specifically replacing the previous instrument IMMI 07/012 that expired on 1 October 2017. The instrument operates under paragraph 1.15AA(1)(c) of the Migration Regulations, requiring carers to provide a medical assessment certificate indicating an impairment rating of 30, which aligns with the Impairment Tables determined under the Social Security Act 1991. The instrument was made without the need for consultation, as it does not alter existing arrangements but rather maintains continuity by preserving the previously established impairment rating. The Office of Best Practice Regulation has confirmed that a Regulatory Impact Statement is not required, and the instrument is exempt from disallowance under the Legislation (Exemptions and Other Matters) Regulation 2015, thereby also exempt from requiring a Statement of Compatibility with Human Rights.

Scope and Application

The Migration (IMMI 17/126: Impairment Rating) Instrument 2017 applies to applicants seeking to obtain a visa as a carer of an Australian Citizen, Australian Permanent Resident, or eligible New Zealand citizen. This legislation specifies the required impairment rating for the person for whom the applicant intends to care, setting it at 30, as determined by the Social Security Act 1991. This requirement ensures that the medical condition of the person being cared for is severe enough to warrant the need for a carer. The instrument is made under the Migration Regulations 1994, thereby applying at the Commonwealth level across Australia. This instrument serves to maintain the impairment rating of 30, which was previously specified in the now-expired instrument IMMI 07/012. The instrument is effective from the day after its registration on the Federal Register of Legislation, and no disallowance or human rights compatibility statement is required as it maintains existing arrangements.

Key Provisions

The key provision of Instrument IMMI 17/126 under the Migration Regulations 1994 (Regulations) is the specification of an impairment rating of 30 for the purposes of paragraph 1.15AA(1)(c) of the Regulations. This instrument (section 1) sets the minimum impairment rating that must be present for a person to qualify for a visa as a carer of an Australian citizen, permanent resident, or eligible New Zealand citizen. Regulation 1.15AA requires that an applicant provide a medical assessment certificate indicating that the person they intend to care for has a medical condition causing an impairment, with the rating specified in the certificate needing to equal or exceed the impairment rating specified in the legislative instrument (section 2). The obligations imposed by the Act on the parties or entities it governs include the requirement for applicants to furnish a medical assessment certificate that details the medical condition and the associated impairment rating (section 2). The impairment rating must be equal to, or exceed, the rating specified in the legislative instrument, which is set at 30 (section 3). Subparagraph 1.15AA(1)(b)(iii) of the Regulations further specifies that this rating must be in accordance with the Impairment Tables, as determined by an instrument made under the Social Security Act 1991 (section 4). Instrument IMMI 17/126 outlines the civil and criminal consequences for non-compliance with the specified impairment rating requirement. While the Act does not explicitly detail penalties for failing to meet the impairment rating requirement, non-compliance with the visa application provisions under the Migration Act 1958 can result in civil and criminal penalties. These may include fines, imprisonment, or both, depending on the nature and severity of the offence (section 5). The specific penalties would be determined by the courts in the context of any contravention of the broader Migration Act 1958.