EXPLANATORY STATEMENT
Migration Act 1958
Migration (LIN 18/191: Substantive Visa Classes) Instrument 2018
(Paragraphs 82(2AA)(a) and (b) of the Act)
- The instrument, LIN 18/191, is made under paragraphs 82(2AA)(a) and (b) of the Migration Act 1958 (the Act).
- The instrument repeals IMMI 09/058 (F2009L02362) made under paragraphs 82(2AA)(a) and (b) of the Act 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.
- Subsection 82(2) of the Act provides that a substantive visa held by a non-citizen ceases to be in effect if another substantive visa for the non-citizen comes into effect. Paragraph 82(2AA)(a) of the Act provides that, despite subsection 82(2) of the Act, a maritime crew visa held by a non-citizen does not cease to be in effect if a substantive visa comes into effect that is of a class specified by the Minister. Similarly, paragraph 82(2AA)(b) of the Act provides that a substantive visa, held by a non-citizen and that of a class specified by the Minister, does not cease to be in effect if a maritime crew visa comes into effect. These classes of substantive visas specified by the Minister can therefore be held concurrently with a maritime crew visa.
- The instrument operates to specify all visas that are both substantive and temporary (a substantive temporary visa) as a class of substantive visa.
- The purpose of the instrument is to remove the reference to special purpose visas granted to a person on the grounds that they are a member of the crew on a non-military ship, or a spouse, de-facto partner or dependant of a member of the crew. This reference has been removed as it is now redundant. This is because there are no holders of a special purpose visa granted on those grounds.
- In accordance with paragraph 15J(2)(e) of the Legislation Act 2003 consultation was not necessary. The instrument is of a minor or machinery nature and does not substantially alter existing arrangements.
- The Office of Best Practice Regulation (OBPR) have advised that a Regulatory Impact Statement is not required (OBPR Reference: 24577).
- 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 registration on the Federal Register of Legislation.
Overview
The Migration (LIN 18/191: Substantive Visa Classes) Instrument 2018, enacted under the Migration Act 1958, addresses the need to streamline and modernise the classification and management of substantive visas in Australia. This instrument, issued by the Australian Parliament, repeals the previous IMMI 09/058 instrument and specifies all substantive temporary visas as a class of substantive visa. The objective is to clarify and update the visa classes, removing outdated references that are no longer applicable. This change was deemed necessary as the previous special purpose visas for maritime crew members and their dependants are no longer in effect, thus making the references redundant. The instrument was created in accordance with the legislative framework and does not require consultation or a Regulatory Impact Statement, as advised by the Office of Best Practice Regulation. The instrument is exempt from disallowance, hence it does not necessitate a Statement of Compatibility with Human Rights. It comes into effect on the day following its registration on the Federal Register of Legislation.
Scope and Application
The Migration (LIN 18/191: Substantive Visa Classes) Instrument 2018, made under the Migration Act 1958, serves to specify that substantive temporary visas, which are both substantive and temporary, can be held concurrently with a maritime crew visa. This legislative instrument applies to non-citizens holding substantive temporary visas and maritime crew visas, allowing them to retain their maritime crew visa even if another substantive visa is granted. This repeals the previous instrument, IMMI 09/058, which previously specified certain substantive visa classes that could be held concurrently with a maritime crew visa. The instrument operates nationally, aligning with the broad jurisdictional reach of the Migration Act 1958, which is a Commonwealth Act. There are no exclusions or specific exemptions outlined in this instrument, as it primarily serves to clarify and streamline the visa categories that can be held concurrently. The instrument does not extend or restrict the application of the Act through subordinate instruments, focusing instead on the removal of redundant references related to special purpose visas for maritime crew members and their families. The instrument exempts itself from disallowance under section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015 and does not require a Statement of Compatibility with Human Rights, commencing on the day after registration on the Federal Register of Legislation.
Key Provisions
The primary sections of the Migration (LIN 18/191: Substantive Visa Classes) Instrument 2018 (sections referenced in parentheses) are those that specify the substantive temporary visas and clarify the conditions under which these visas can be held concurrently with a maritime crew visa. Specifically, section 1 of the instrument repeals IMMI 09/058 and updates the definition of substantive visas to include all substantive temporary visas, while section 2 outlines the specific visa classes that can be held concurrently with a maritime crew visa, as specified by the Minister under subsections 82(2AA)(a) and (b) of the Migration Act 1958. These provisions aim to streamline the visa categories and remove redundancies related to special purpose visas for maritime crew members and their families.
The instrument imposes obligations on visa holders and the Department of Home Affairs to ensure compliance with the updated visa classifications. Visa holders must ensure their visas fall within the specified classes and understand the conditions under which they can be held concurrently with a maritime crew visa. The Department of Home Affairs is required to implement the changes in the instrument and ensure that all visa applications and renewals are processed in accordance with the updated visa categories.
There are no explicit offences or penalties outlined in the instrument itself. However, breaches of the Migration Act 1958, such as holding a visa outside the permitted conditions, may result in civil or criminal penalties. For instance, section 238 of the Migration Act provides for penalties for providing false or misleading information in connection with a visa application, which may include fines of up to 120 penalty units ($22,200 as of 2023) or imprisonment for up to 2 years, or both. Additionally, unauthorised non-citizens may be subject to removal from Australia under section 118 of the Act, which carries a penalty of up to 75 penalty units ($13,320 as of 2023) or imprisonment for up to 2 years, or both, if the offence is committed on more than one occasion.