EXPLANATORY STATEMENT
Migration Regulations 1994
Migration (LIN 19/061: Bridging (General) Visa—Satisfaction of Criteria by Certain Applicants) Instrument 2019
(Subparagraph 050.212(8)(c)(ii))
- The instrument, LIN 19/061, is made under subparagraph 050.212(8)(c)(ii) of Schedule 2 to the Migration Regulations 1994 (the Regulations).
- The instrument repeals IMMI 09/079 (F2009L02552) made under subparagraph 050.212(8)(c)(ii), 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.
- Under paragraph 050.212(8)(c) of Schedule 2 to the Regulations, the reasons for the delay in making an application for a Protection (Class XA) visa must be acceptable to the Minister. The instrument operates to specify a class of persons who are not required to satisfy the Minister with an acceptable reason for a delay in making an application for a Protection (Class XA) visa. Applicants in a class of persons specified by the Minister do not need to satisfy the requirements of subparagraph 050.212(8)(c)(i) of the Regulations and are eligible to be considered for the grant of an associated Bridging (General) (Class WE) visa.
- The purpose of the instrument is to ensure that:
- persons who currently hold, or have ever held, a Subclass 786 Humanitarian Concern visa for whom the Minister has lifted the bar in section 91K of the Act and who have made an application for a Protection (Class XA) visa within 7 working days of being given notice that the Minister has lifted the bar under section 91L of the Act, are exempt from satisfying the Minister that there is an acceptable reason for the delay in applying for a Protection (Class XA) visa under subparagraph 050.212(8)(c)(i) of Schedule 2 to the Regulations; and
- persons who currently hold, or have ever held a Subclass 785 Temporary Protection visa and who make an application for a Protection (Class XA) visa are specified, for the purposes of section 91K of the Act, as a class of persons, under subparagraph 050.232(8)(c)(ii) of Schedule 2 to the Regulations, who are exempt from satisfying the Minister of an acceptable reason for a delay in applying for that visa. This ensures continuity in permission and therefore the ability to work for persons who are both Protection (Class XA) visa applicants and Resolution of Status (Class CD) visa applicants and are transitioning to a Subclass 851 (Resolution of Status) visa.
5. The instrument also removes references to visa Subclass 451 Secondary Movement Relocation and Subclass 447 Secondary Movement Offshore Entry visas which were repealed by Select Legislative Instrument No. 168 of 2005.
6. In accordance with paragraph 15J(2)(e) of the Legislation Act 2003, consultation was not necessary as the instrument is of a minor or machinery nature and does not substantially alter existing arrangements.
7. The Office of Best Practice Regulation (OBPR) have advised that a Regulatory Impact Statement is not required (OBPR Reference: 24201).
8. 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.
9. The instrument commences on the day after this instrument is registered on the Federal Register of Legislation.
Overview
The Migration (LIN 19/061: Bridging (General) Visa—Satisfaction of Criteria by Certain Applicants) Instrument 2019 is an instrument under the Migration Regulations 1994, designed to address the administrative burden and processing delays associated with certain applicants for Protection (Class XA) visas. Enacted by the Parliament of Australia, this instrument aims to streamline the visa application process by exempting specific classes of applicants from needing to provide an acceptable reason for any delay in applying for a Protection (Class XA) visa. This policy objective ensures that individuals who have previously held certain humanitarian visas, such as Subclass 786 Humanitarian Concern or Subclass 785 Temporary Protection visas, and who apply for a Protection (Class XA) visa within a specified timeframe, are not subjected to the additional requirement of justifying any delay in their application. Consequently, this instrument facilitates smoother transitions for these individuals into other visa categories, maintaining their eligibility to work during the application process.
Scope and Application
The instrument LIN 19/061, made under subparagraph 050.212(8)(c)(ii) of Schedule 2 to the Migration Regulations 1994, serves to specify a class of applicants who are exempt from satisfying the Minister with an acceptable reason for a delay in applying for a Protection (Class XA) visa. This instrument repeals the previous instrument IMMI 09/079 and applies to individuals who currently hold, or have ever held, a Subclass 786 Humanitarian Concern visa for whom the Minister has lifted the bar under section 91K of the Migration Act 1958, and who have applied for a Protection (Class XA) visa within seven working days of receiving notice that the bar has been lifted. Additionally, it applies to those who hold, or have held, a Subclass 785 Temporary Protection visa and are making an application for a Protection (Class XA) visa. These individuals are exempt from satisfying the Minister of an acceptable reason for any delay in their application under subparagraph 050.212(8)(c)(i) of Schedule 2 to the Regulations, facilitating their eligibility for an associated Bridging (General) (Class WE) visa. The instrument ensures continuity in permission and the ability to work for applicants who are transitioning to a Subclass 851 (Resolution of Status) visa. It also removes references to repealed visa subclasses, aligning with the current legislative framework. The instrument does not require consultation, a Regulatory Impact Statement, or a Statement of Compatibility with Human Rights, as it is deemed minor and does not substantially alter existing arrangements.
Key Provisions
The main operative sections of this instrument (LIN 19/061) pertain to the repeal of previous regulations (IMMI 09/079) and the specification of certain classes of individuals exempt from needing to satisfy the Minister with an acceptable reason for delays in applying for a Protection (Class XA) visa (subparagraph 050.212(8)(c)(ii) of Schedule 2 to the Migration Regulations 1994). Specifically, the instrument exempts individuals who hold or have held a Subclass 786 Humanitarian Concern visa, for whom the Minister has lifted the bar under section 91K of the Migration Act 1958, and who apply for a Protection (Class XA) visa within seven working days of notification that the bar has been lifted (subparagraph 050.212(8)(c)(ii) of Schedule 2 to the Regulations). Additionally, individuals currently holding or previously holding a Subclass 785 Temporary Protection visa are also exempt from providing an acceptable reason for delays in applying for a Protection (Class XA) visa. These provisions ensure that eligible applicants are not required to meet certain criteria for delays in their visa applications, facilitating a smoother transition for those seeking protection.
The obligations and requirements imposed by this instrument primarily concern the eligibility criteria for the exemption from delay-related requirements in applying for a Protection (Class XA) visa. For instance, individuals must have held a Subclass 786 Humanitarian Concern visa, for which the Minister has lifted the bar under section 91K of the Migration Act 1958, and must have applied for a Protection (Class XA) visa within seven working days of receiving notice of the lifting of the bar. Similarly, those who have held a Subclass 785 Temporary Protection visa must also meet these specific timelines and conditions. The instrument further mandates that these individuals are considered for an associated Bridging (General) (Class WE) visa, ensuring they maintain permission to work while their new visa applications are being processed.
In terms of consequences for non-compliance, the instrument itself does not explicitly outline specific offences, penalties, or civil/criminal consequences for breaching the regulations. However, failure to comply with the eligibility criteria or timelines for applying for a Protection (Class XA) visa as specified by the instrument could result in the application being rejected or the associated Bridging (General) (Class WE) visa not being granted. This could potentially disrupt the continuity of permission to work, thereby affecting the individual's ability to remain in Australia and maintain employment. While the specific penalties for non-compliance are not detailed within this instrument, the broader Migration Act 1958 provides for a range of sanctions, including fines and imprisonment, for violations of migration laws.