Migration (LIN 18/173: Arrangements for Working Holiday Visa Applications) Instrument 2018

Administered by Department of Home Affairs

Legislation au F2018L01507 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Migration Regulations 1994

Migration (LIN 18/173: Arrangements for Working Holiday Visa Applications) Instrument 2018

(Subregulation 2.07(5), subitem 1225(5) of Schedule 1 and subclause 417.211(2) of Schedule 2 to the Regulations)

  1. The instrument, LIN 18/173, is made under subregulation 2.07(5), subitem 1225(5) of Schedule 1 and subclause 417.211(2) of Schedule 2 to the Migration Regulations 1994 (the Regulations).
  2. The instrument amends IMMI 18/102 (F2018L00773) made under subregulation 2.07(5), paragraph 1224A(3)(a), subparagraph 1224A(3)(b)(iii) and subitem 1225(5) of Schedule 1 and subclause 417.211(2) and paragraphs 462.212(b) and 462.221(c) of Schedule 2 to the Regulations and in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (the AIA). Subsection 33(3) of the AIA 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.
  3. The instrument operates to specify the requirements for making an application for a Working Holiday (Temporary) (Class TZ) visa. For the purposes of subitem 1225(1) of Schedule 1 to the Regulations, the instrument specifies the approved forms for making an application. For the purposes of subitem 1225(3) of Schedule 1 to the Regulations, the instrument specifies the place and manner in which an application is to be made.
  4. The instrument also operates to outline the criteria for a Subclass 417 (Working Holiday) visa. Under paragraph 417.211(2)(a) of the Regulations, a working holiday eligible passport must be held by a person seeking to meet the criteria for a Subclass 417 (Working Holiday) visa. The instrument specifies the foreign countries that may issue a working holiday eligible passport and the conditions that passport must satisfy to be working holiday eligible. Furthermore, for the purposes of paragraph 417.211(2)(a) and subparagraph 417.211(2)(b)(ii) of the Regulations, the instrument specifies the upper age limit for persons holding a specified passport, seeking to meet the criteria for a Subclass 417 (Working Holiday) visa.
  5. The purpose of the instrument is to increase the eligible age range for Canadian and Irish applicants for the Subclass 417 (Working Holiday) visa, from an upper age limit of 30 to 35.
  6. The change is in response to the Government’s announcement in September 2016 of a Working Holiday Maker reform package. The reform package included a measure to expand the eligibility age for Subclass 417 (Working Holiday) visa and Subclass 462 (Work and Holiday) visa applicants from 18-30 years to 18-35 years to improve the supply of Working Holiday Makers in Australia.
  7. Consultation was undertaken before the instrument was made as follows:
    1. The Department consulted in December 2016 and April 2017 with tourism industry stakeholders through the Tourism Visa Advisory Group in relation to the government’s decision to increase the eligibility age from 30 to 35 years. Additionally, the Department consulted with the Department of Employment, the Department of Foreign Affairs and Trade, the Department of Finance, Treasury, Department of Agriculture and Water Resources and Tourism Australia on implementation of the age increase.
    2. The Department commenced bilateral negotiations with partner countries through a phased approach. Canada and Ireland have agreed to also implement the age increase.
  8. The Office of Best Practice Regulation (OBPR) have advised that a Regulatory Impact Statement is not required (OBPR Reference: 22248).
  9. The officer (Senior Executive Service, Band One, Immigration and Visa Services Division) who made the instrument was delegated the powers required to make the instrument in Minister – Delegations Instrument No. 5 of 2018 (Instrument Making Powers) (MHA No. 5 of 2018), signed on 10 April 2018.
  10. 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.
  11. The instrument commences on 1 November 2018.

Overview

The Migration Regulations 1994 were amended in 2018 with the introduction of instrument LIN 18/173, which was enacted to address the gap in eligibility criteria for the Working Holiday (Temporary) (Class TZ) visa, specifically concerning the upper age limit for applicants from certain countries. This amendment was enacted by the Australian Parliament to align with the policy objective of increasing the supply of Working Holiday Makers in Australia by expanding the eligibility age range for Subclass 417 and Subclass 462 visa applicants. The instrument specifies the approved forms and procedures for making an application and sets out the criteria for a Subclass 417 visa, including the upper age limit for applicants from Canada and Ireland, which was extended from 30 to 35 years. The changes were implemented following consultations with various government departments and tourism industry stakeholders, and in response to the government's Working Holiday Maker reform package announced in September 2016.

Scope and Application

The Migration (LIN 18/173: Arrangements for Working Holiday Visa Applications) Instrument 2018 applies to individuals who intend to apply for a Working Holiday (Temporary) (Class TZ) visa, specifically targeting those holding eligible passports from Canada and Ireland. The instrument amends the Migration Regulations 1994 to increase the upper age limit for these applicants from 30 to 35 years, aligning with the Working Holiday Maker reform package announced in 2016. The reform aims to enhance the supply of Working Holiday Makers in Australia by extending the eligibility period. The instrument details the approved forms and procedures for visa applications and sets out the criteria for the Subclass 417 visa, including the conditions that eligible passports must satisfy. The instrument operates under the Commonwealth jurisdiction, and its application is specifically tailored to the circumstances of the Working Holiday visa subclass. The instrument is exempt from disallowance under section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015, and a Statement of Compatibility with Human Rights is therefore not required. It commenced on 1 November 2018.

Key Provisions

The Migration (LIN 18/173: Arrangements for Working Holiday Visa Applications) Instrument 2018, made under subregulation 2.07(5), subitem 1225(5) of Schedule 1 and subclause 417.211(2) of Schedule 2 to the Migration Regulations 1994, specifies the requirements for making an application for a Working Holiday (Temporary) (Class TZ) visa. It outlines the approved forms for applications under subitem 1225(1) of Schedule 1, and the place and manner in which applications must be made under subitem 1225(3) of Schedule 1. Furthermore, it details the criteria for a Subclass 417 (Working Holiday) visa, including the requirement for a working holiday eligible passport under paragraph 417.211(2)(a) of the Regulations, and the upper age limit for applicants under subparagraph 417.211(2)(b)(ii) of the Regulations. The instrument imposes obligations on applicants for a Subclass 417 (Working Holiday) visa to ensure they meet the specified criteria, including holding a working holiday eligible passport from one of the approved countries, and being within the stipulated age range. It requires applicants to submit their applications through the approved forms and designated channels. Additionally, it mandates that the specified foreign countries, namely Canada and Ireland, adhere to the conditions set for issuing working holiday eligible passports. The instrument also requires the Department to consult with relevant stakeholders and partner countries before implementing the age increase. Breach of the requirements outlined in this instrument may result in refusal of the visa application or other administrative consequences. While the instrument does not explicitly state penalties for non-compliance, failure to meet the specified criteria or submit a valid application can lead to the denial of the visa and potential legal repercussions for misrepresentation or providing false information. Additionally, non-compliance by the issuing country could lead to diplomatic or bilateral issues. The instrument, being exempt from disallowance under section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015, does not require a Statement of Compatibility with Human Rights. It comes into effect on 1 November 2018, marking the implementation of the expanded eligibility age for Canadian and Irish applicants for the Subclass 417 (Working Holiday) visa.

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