EXPLANATORY STATEMENT
Migration Regulations 1994
Migration (IMMI 18/001: Class of Passports) Instrument 2018
(Public Interest Criterion 4021 of Schedule 4)
- Instrument IMMI 18/001 is made under Public Interest Criterion 4021 of Schedule 4 to the Migration Regulations 1994 (the Regulations).
- The instrument repeals IMMI 14/073 (F2014L01319): Class of Passports Instrument 2014 made under Public Interest Criterion 4021 of Schedule 4 to the Regulations in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (the Interpretation Act). Subsection 33(3) of the Interpretation Act states that where an Act confers a power to make, grant or issue 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 any such instrument.
- The instrument also repeals IMMI 14/094: Direction (Section 71B) which was made under subsection 71B(2) of the Migration Act 1958 (the Act). Subsection 71B(2) of the Act was repealed on 24 March 2016 and IMMI 14/094 currently has no legal effect.
- Public Interest Criterion 4021(a) provides that the visa applicant must hold a valid passport that was issued to the applicant by an official source, in the form issued by that official source and does not belong to a class of passports specified by the Minister in an instrument in writing. The instrument specifies those classes of passports.
- The instrument is substantively the same as the instrument it repeals (IMMI 14/073) except for the following two changes:
- the instrument specifies Somali passports for Public Interest Criterion 4021 of Schedule 4 to the Regulations; and
- the instrument removes the reference to ‘Turkish passports identifying the holder as an official of the ‘Turkish Republic of Northern Cyprus’ from the list of passports that are specified for Public Interest Criterion 4021 of Schedule 4 to the Regulations.
- The purpose of the instrument is to clarify that Somali passports are a class of passport that an applicant cannot hold in order to satisfy Public Interest Criterion 4021 when applying for a visa. This is a clarification of the previous determination (IMMI 14/073) which specified that “Somali travel documents” are a class of passport that cannot be held to satisfy Public Interest Criterion 4021, and “travel documents” includes “passports”.
- The instrument also does not include “Turkish passports identifying the holder as an official of the ‘Turkish Republic of Northern Cyprus’” that was part of the list of the previous determinations’ list of travel documents that an applicant cannot hold to satisfy Public Interest Criterion 4021 when applying for a visa. The change will mean that Turkish passports with endorsements identifying the holder as an official of the Turkish Republic of Northern Cyprus will be accepted as a travel document for the purposes of Public Interest Criterion 4021. The change aligns Australia with our international partners (the United States and European Union member states) but does not alter Australia’s long standing policy to recognise only the Republic of Cyprus and support reunification of the island.
- The Department of Foreign Affairs and Trade was consulted about the development of this instrument.
- The Office of Best Practice Regulation (OBPR) has advised that a Regulatory Impact Statement is not required (OBPR Reference: 23419).
- Under section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015, the instrument is exempt from disallowance and therefore a Statement of Compatibility with Human Rights is not required.
- This instrument commences on the day after it is registered on the Federal Register of Legislation.
Overview
The Migration Regulations 1994 were enacted to provide a comprehensive framework for the administration of Australia's migration laws. The specific instrument, IMMI 18/001, was introduced in 2018 to address the need for clarity regarding the classes of passports that do not meet the requirements of Public Interest Criterion 4021 under Schedule 4 of the Migration Regulations. This instrument was developed under the authority granted by the Migration Act 1958 and the Acts Interpretation Act 1901, which empowers the government to create, amend, or repeal instruments that align with legislative mandates. The primary policy objective of IMMI 18/001 is to ensure that visa applicants hold a valid passport from an authorised source, excluding specific classes of passports that are deemed unsuitable for satisfying the public interest requirements. This includes clarifying that Somali passports and certain Turkish passports with specific endorsements are not acceptable, thereby maintaining consistency with international standards and policies.
Scope and Application
Instrument IMMI 18/001, made under Public Interest Criterion 4021 of Schedule 4 to the Migration Regulations 1994, specifically addresses the types of passports that are not acceptable for visa applicants when satisfying Public Interest Criterion 4021. This instrument applies to any individual or entity seeking a visa under the Migration Act 1958, focusing on the requirement for a valid passport that is not of a class specified by the Minister in an instrument in writing. The instrument clarifies that Somali passports are now explicitly listed as unacceptable, whereas previously only "Somali travel documents" were specified, which included passports. Additionally, the instrument removes Turkish passports identifying the holder as an official of the 'Turkish Republic of Northern Cyprus' from the list of unacceptable passports, thus aligning Australia's policy with that of its international partners. This instrument is effective nationwide within the Commonwealth of Australia and is subject to changes as specified through subordinate legislative instruments, as per the Acts Interpretation Act 1901. The instrument exempts itself from disallowance and does not require a Statement of Compatibility with Human Rights.
Key Provisions
The Migration (IMMI 18/001: Class of Passports) Instrument 2018 (referred to as "the instrument") is made under Public Interest Criterion 4021 of Schedule 4 to the Migration Regulations 1994 (section 1). This instrument specifies the classes of passports that a visa applicant cannot hold to satisfy the requirements of Public Interest Criterion 4021. Specifically, it identifies Somali passports as a class of passport that cannot be held, which is a clarification of the previous determination which specified that "Somali travel documents" were a class of passport that could not be held (section 3). Additionally, the instrument removes the reference to "Turkish passports identifying the holder as an official of the 'Turkish Republic of Northern Cyprus'" from the list of passports specified for Public Interest Criterion 4021, meaning that such passports will now be accepted as a travel document for the purposes of Public Interest Criterion 4021 (section 3).
The obligations imposed by this instrument on visa applicants are clear: applicants must hold a valid passport that was issued by an official source, in the form issued by that source, and it must not belong to a class of passports specified by the Minister in an instrument in writing (section 2). In practical terms, this means that visa applicants cannot use Somali passports or Turkish passports identifying the holder as an official of the Turkish Republic of Northern Cyprus to satisfy the requirements of Public Interest Criterion 4021. This requirement is intended to ensure that visa applicants meet the necessary security and authenticity standards.
There are no specific offences, penalties, or consequences outlined for breaches of this instrument. However, failure to comply with the requirements of Public Interest Criterion 4021 could result in the visa application being refused or the visa being cancelled, as these are general provisions under the Migration Act 1958. The instrument itself does not introduce new penalties but relies on existing provisions within the Migration Act and Regulations for enforcement.
The instrument repeals two previous instruments: IMMI 14/073 and IMMI 14/094 (section 2). The repeal of these instruments ensures that the law remains up to date and aligned with current policy and international standards. The instrument is substantively similar to the repealed instrument but includes two key changes: it specifies Somali passports as a class of passport that cannot be held, and it removes the reference to Turkish passports identifying the holder as an official of the Turkish Republic of Northern Cyprus from the list of specified passports (section 3). This instrument is exempt from disallowance and therefore does not require a Statement of Compatibility with Human Rights (section 8).