EXPLANATORY STATEMENT
Migration Act 1958
Migration (IMMI 18/002: Eligible Passports) Instrument 2018
(Section 175A)
- Determination IMMI 18/002 is made under section 175A of the Migration Act 1958 (the Act).
- The instrument repeals IMMI 14/079 (F2014L01165): Eligible Passports Instrument 2014 made under section 175A of the Act 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 operates, under section 175A of the Act, to specify that a kind of passport is an “eligible passport” for the purposes of Division 5 of Part 2 of the Act. Division 5 of Part 2 of the Act regulates the immigration clearance of persons entering Australia. The determination specifies that all valid passports are “eligible passports” with the exceptions of travel documents with certain characteristics specified in Schedule 1 to the instrument and specified travel documents in Schedule 2 to the instrument.
- This instrument is substantively the same as the instrument it repeals (IMMI 14/079) except for the following two changes:
- the instrument determines Somali passports are excluded from being a kind of valid passport that is an “eligible passport” for Division 5 of Part 2 of the Act; 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 excluded from being a kind of valid passport that is an “eligible passport” for Division 5 of Part 2 of the Act.
- The purpose of this instrument is to clarify that Somali passports are not a kind of passport that is an “eligible passport” for Division 5 of Part 2 of the Act. This is a clarification of the previous determination (IMMI 14/079) which specified that “Somali travel documents” are not considered to be an “eligible passport” for Division 5 of Part 2 of the Act, and the term “travel documents” is interpreted to include “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 from the previous determinations’ list of passports that are not considered to be “eligible passports” for Division 5 of Part 2 of the Act. This change will mean that Turkish passports with endorsements identifying the holder as an official of the Turkish Republic of Northern Cyprus will be considered an “eligible passport” for Division 5 of Part 2 of the Act. This 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 (IMMI 18/002: Eligible Passports) Instrument 2018, enacted under the Migration Act 1958, was introduced to address the need for a clearer definition of what constitutes an “eligible passport” for immigration clearance purposes. This legislative instrument, made by the Commonwealth under the authority conferred by section 175A of the Act, replaces the Eligible Passports Instrument 2014. The primary objective of this instrument is to refine the list of passports that are deemed ineligible for immigration clearance by explicitly excluding Somali passports from the category of “eligible passports” and removing the exclusion of Turkish passports identifying the holder as an official of the ‘Turkish Republic of Northern Cyprus’. The changes aim to align Australia's policy with that of its international partners, while maintaining the stance on recognising only the Republic of Cyprus and supporting the reunification of the island. This instrument ensures the continued effectiveness of the regulatory framework governing the immigration clearance of persons entering Australia.
Scope and Application
The Migration (IMMI 18/002: Eligible Passports) Instrument 2018, made under section 175A of the Migration Act 1958, provides clarifications on the types of passports considered "eligible passports" for immigration clearance when entering Australia. This instrument repeals and replaces the Eligible Passports Instrument 2014, aligning with international standards while maintaining Australia's stance on the recognition of only the Republic of Cyprus. It specifies that all valid passports are eligible, with exceptions for travel documents listed in Schedule 1 and specified travel documents in Schedule 2. Notably, this instrument excludes Somali passports from the list of eligible passports, correcting an ambiguity from previous regulations. Additionally, it removes Turkish passports identifying the holder as an official of the ‘Turkish Republic of Northern Cyprus’ from the list of ineligible passports, bringing Australia in line with the United States and the European Union. This instrument applies to individuals entering Australia and is effective nationwide, operating under the authority granted by the Migration Act 1958 and the Acts Interpretation Act 1901. It commences on the day after its registration on the Federal Register of Legislation, and exemptions from disallowance and human rights compatibility statements have been appropriately noted.
Key Provisions
The main operative sections of the Migration (IMMI 18/002: Eligible Passports) Instrument 2018 (paragraph 1) clarify the criteria for determining which passports are eligible for immigration clearance in Australia. Section 175A of the Migration Act 1958 empowers the Minister to specify kinds of passports that are eligible for the purposes of immigration clearance. The instrument specifies that all valid passports are considered eligible, except those identified in Schedule 1 and Schedule 2 of the instrument (paragraph 2). Schedule 1 lists travel documents with certain characteristics, and Schedule 2 lists specified travel documents that are excluded from being eligible passports (paragraph 3).
This legislation imposes specific obligations on the parties it governs. The instrument, under section 175A, mandates that only those passports that meet the criteria specified in the schedules are eligible for immigration clearance (paragraph 4). This means that when a person arrives in Australia, their passport must be valid and not fall under the exclusions listed in the schedules to be considered an eligible passport for immigration clearance purposes (paragraph 5). These obligations are essential for ensuring that the immigration process adheres to the criteria set out in the Act.
The instrument also addresses potential breaches and their consequences. While the explanatory statement does not specify explicit offences, penalties, or civil/criminal consequences for non-compliance with the instrument, it is implied that failing to adhere to the specified criteria for eligible passports could result in denial of immigration clearance. The Migration Act 1958 contains various provisions for penalties and enforcement actions related to immigration matters, which would apply if a person attempts to enter Australia with a non-eligible passport (paragraph 6). These penalties could include fines, imprisonment, or other administrative actions as prescribed under the Act.