EXPLANATORY STATEMENT
Migration Regulations 1994
MIGRATION (IMMI 18/013: CLASSES OF PERSONS FOR STUDENT (TEMPORARY) (CLASS TU) VISA) INSTRUMENT 2018
(subitem 1222(5))
- Instrument IMMI 18/013 is made under paragraph 1222(5)(a) of Schedule 1 to the
Migration Regulations 1994 (the Regulations), for the purposes of subparagraph 1222(2)(a)(i) of Schedule 1 to the Regulations. - The Instrument repeals IMMI 16/015 (F2016L00628) under paragraph 1222(5)(a) of Schedule 1 to the Regulations and in accordance with subsection 33(3) of the Acts Interpretation Act 1901, which states 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 for the Minister to specify classes of persons to whom subparagraph 1222(2)(a)(i) of Schedule 1 to the Regulations applies. For applicants included in these classes of persons, the first instalment of the visa application charge amount is nil.
- The purpose of the instrument is for the Minister to specify the classes of persons specified in the repealed instrument IMMI 16/015.
- The purpose of this instrument is also to specify as a class of persons an applicant who claims to be a member of the family unit of a subsequent applicant, and seeks to combine their application with the subsequent applicant who is seeking to satisfy the secondary criteria for the grant of a Subclass 500 visa, and where the subsequent applicant claims to be a member of the family unit of a Subclass 500 visa holder who is enrolled in a postgraduate research course.
- The instrument reflects the policy intent of the Simplified Student Visa Framework (SSVF), which commenced on 1 July 2016. The intention of the SSVF was for the pricing dimensions for all categories of visa applicants to carry over from the
pre-1 July 2016 structure, including that family members of postgraduate research student applicants would not pay an additional applicant charge. - Consultation was undertaken with key international education sector stakeholders as part of the project to simplify Australia's student visa framework before this instrument was made. Stakeholders consulted included: Commonwealth agencies (Department of Education and Training, Austrade, Department of Foreign Affairs and Trade, the Department of Defence, the Australian Skills Quality Authority, and the Tertiary Education Quality and Standards Agency), state and territory government agencies (including school regulators), as well as industry peak bodies (Australian Council for Private Education and Training, Australian Government Schools International, Council of Private Higher Education, English Australia, Independent Schools Council of Australia, International Education Association of Australia, TAFE Directors Australia, and Universities Australia).
- The Office of Best Practice Regulation (OBPR) has been consulted and has advised that a Regulatory Impact Statement is not required for the instrument (OBPR Reference 21643).
- The Senior Executive Service, Band Two, Immigration and Citizenship Policy Division was delegated the powers in subitem 1222(5) in instrument of delegation DEL 17/077, signed on 9 November 2017.
- 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.
- The instrument commences on the day after it is registered on the Federal Register of Legislation.
Overview
The Migration Regulations 1994 (MIGRATION (IMMI 18/013: CLASSES OF PERSONS FOR STUDENT (TEMPORARY) (CLASS TU) VISA) INSTRUMENT 2018) was enacted to address the need for a streamlined and simplified student visa framework, particularly in terms of the pricing structure for visa applicants. This instrument was developed under the authority of the Migration Act 1958 and is aimed at ensuring that the policy intent of the Simplified Student Visa Framework (SSVF) is implemented effectively. The SSVF, which commenced on 1 July 2016, intended to maintain the pre-existing pricing structure, including the exemption of additional applicant charges for family members of postgraduate research student applicants. The instrument was crafted by the Minister for Immigration and Border Protection, following consultations with various stakeholders within the international education sector to ensure the instrument aligns with the overall policy objectives of the SSVF.
Scope and Application
The Migration (Immi 18/013: Classes of Persons for Student (Temporary) (Class TU) Visa) Instrument 2018 applies to individuals who meet specific criteria under the Migration Regulations 1994, specifically concerning the application process for a Subclass 500 Student (Temporary) visa. This includes applicants who are part of the family unit of a subsequent visa applicant, who in turn is a member of the family unit of a Subclass 500 visa holder enrolled in a postgraduate research course. By specifying these classes of persons, the instrument exempts them from paying the first instalment of the visa application charge. This instrument operates across Australia, given the national scope of the Migration Act 1958, which underpins the Regulations. It is made under the authority granted to the Minister for Immigration and Border Protection and operates in alignment with the Simplified Student Visa Framework (SSVF) that commenced on 1 July 2016, aiming to streamline the visa application process for student visa applicants.
Key Provisions
The primary operative sections of the instrument, IMMI 18/013, are subitem 1222(5) of the Migration Regulations 1994 (paragraphs 1 and 2). This instrument specifies the classes of persons for the student (temporary) (Class TU) visa, under which the first instalment of the visa application charge amount is nil for applicants included in these classes. These provisions are made under the authority conferred by paragraph 1222(5)(a) of Schedule 1 to the Regulations, and they reflect the policy intent of the Simplified Student Visa Framework (SSVF), which was introduced to streamline Australia's student visa framework. The instrument repeals the previous instrument, IMMI 16/015, and updates the criteria for visa applicants to ensure continuity from the pre-1 July 2016 structure.
The obligations imposed by the instrument on the parties or entities it governs are primarily related to the classification of visa applicants. The instrument requires the Minister to specify the classes of persons who are eligible for a nil first instalment of the visa application charge. This includes applicants who are members of the family unit of a subsequent applicant, where the subsequent applicant is seeking to satisfy the secondary criteria for the grant of a Subclass 500 visa and claims to be a member of the family unit of a Subclass 500 visa holder enrolled in a postgraduate research course. The instrument also mandates that these classifications align with the policy intent of the SSVF, ensuring that family members of postgraduate research student applicants do not incur an additional applicant charge.
There are no explicit offences, penalties, or civil/criminal consequences outlined in the instrument for breach of its provisions. However, the instrument operates under the overarching authority of the Migration Act 1958 and the Migration Regulations 1994, which include provisions for penalties and enforcement measures for breaches of visa conditions and other related matters. The instrument's compliance is integral to the broader regulatory framework, and any failure to adhere to its specifications could potentially lead to issues under the broader legislative umbrella, including the imposition of fines, visa cancellations, or other administrative actions as deemed appropriate by the Minister or relevant authorities.