EXPLANATORY STATEMENT
Migration Act 1958
Migration (LIN 19/063: Class of Substantive Visa) Instrument 2019
(Paragraphs 82(2AA)(a) and (b) of the Act)
- The instrument, LIN 19/063, is made under paragraphs 82(2AA)(a) and (b) of the Migration Act 1958 (the Act).
- The instrument repeals LIN 18/191 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 as defined in subsection 5(1) of the Act held by a non-citizen ceases to be in effect if another substantive visa granted to 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 (MCV) held by a non-citizen under section 38D of the Act does not cease to be in effect if a substantive visa, in a class specified by the Minister, granted to the non-citizen, comes into effect.
- Similarly, paragraph 82(2AA)(b) of the Act provides that, despite subsection 82(2) of the Act, a substantive visa, in a class specified by the Minister, held by a non-citizen, does not cease to be in effect if an MCV granted to the non-citizen comes into effect. The result of these provisions is that the class of substantive visas specified by the Minister in the instrument can be held concurrently with an MCV.
- The instrument operates to specify all substantive temporary visas as defined in the instrument as a class of substantive visa for the purposes of paragraphs 82(2AA)(a) and (b) of the Act.
- The purpose of the instrument is to remove the reference to special purpose visas (SPVs) granted to a person on the grounds that they are a crew member, or a spouse, de-facto partner or dependant of a crew member, of a non-military ship. These grounds have no longer been available for the granting of SPVs since 1 January 2008. The reference is therefore redundant.
- The change was consulted internally but not externally. This is because the removal of the redundant reference is of minor and machinery nature, and will have no impact on any individual as no one may concurrently hold an SPV and an MCV.
- 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 19/063: Class of Substantive Visa) Instrument 2019, made under the Migration Act 1958, serves to repeal LIN 18/191, which was also made under the same Act. This legislative instrument aims to address the redundancy of special purpose visas (SPVs) granted to crew members and their family members, which ceased to be available since 1 January 2008. The instrument specifies that all substantive temporary visas can be held concurrently with a maritime crew visa (MCV), thereby updating the relevant classes of visas that may be held simultaneously. Enacted by the Parliament of Australia, the policy objective is to streamline and modernise the visa regulations by removing outdated references that no longer apply, ensuring the legislation remains relevant and efficient. The instrument exempts itself from disallowance and does not require a Statement of Compatibility with Human Rights, as advised by the Office of Best Practice Regulation, which also confirmed that a Regulatory Impact Statement was not necessary due to the minor nature of the change.
Scope and Application
The Migration (LIN 19/063: Class of Substantive Visa) Instrument 2019, made under the Migration Act 1958, applies to non-citizens holding a maritime crew visa (MCV) and substantive visas. Specifically, it concerns those non-citizens who have held or are holding substantive temporary visas, as defined within the instrument itself, and allows these to be held concurrently with an MCV. The instrument repeals a previous instrument, LIN 18/191, to remove outdated references to special purpose visas granted on the basis of being a crew member or a related dependant, which are no longer valid since 1 January 2008. This change, considered minor and of a machinery nature, does not impact any individual as these visas cannot be concurrently held with an MCV. The instrument operates under federal jurisdiction and is exempt from disallowance, thus not requiring a Statement of Compatibility with Human Rights. It comes into effect on the day after its registration on the Federal Register of Legislation.
Key Provisions
The key operative sections of the instrument, LIN 19/063, are primarily concerned with the classes of substantive visas that may be held concurrently with a maritime crew visa (MCV) as specified in the Migration Act 1958 (section 82(2AA)). Specifically, subsection 82(2AA)(a) and (b) allow for certain substantive visas to remain in effect even when another substantive visa is granted to the non-citizen. The instrument specifies that all substantive temporary visas can be held alongside an MCV. This amendment ensures that the class of substantive visas listed in the instrument can coexist with an MCV, without the earlier rule in subsection 82(2) causing the earlier visa to cease.
The obligations imposed by the instrument include the repeal of LIN 18/191, which previously specified different conditions for visa holders. The instrument is designed to streamline the process by removing redundant references to special purpose visas (SPVs) that were no longer applicable since 1 January 2008. It mandates that only substantive temporary visas, as defined, can be held concurrently with an MCV. This change aims to simplify the visa categories and reduce bureaucratic hurdles for maritime crew members who may hold temporary visas.
The instrument also sets out the administrative requirements for the application and enforcement of these provisions. It mandates that all maritime crew visas and substantive temporary visas be issued in accordance with the updated legislative framework, ensuring that the specified visas can be held concurrently without any adverse effect on the visa holder's status. This ensures that the non-citizens involved are clearly informed of the visa status and conditions.
Any breaches of the provisions under this instrument may result in civil or criminal consequences. The specific penalties are not detailed in the instrument but would generally fall under the Migration Act 1958 and related regulations. The potential penalties can include fines and imprisonment for more serious breaches, depending on the nature and severity of the offence. The exact penalties would be determined by the courts based on the specific circumstances of each case. The instrument operates to ensure that all visa holders are aware of and comply with the updated legislative requirements to avoid any legal repercussions.