EXPLANATORY STATEMENT
Migration Regulations 1994
Migration (LIN 19/183: Arrangements for Working Holiday Visa Applications) Instrument 2019
(Subregulation 2.07(5), subitem 1225(5) of Schedule 1 and subclause 417.211(2) of Schedule 2 to the Regulations)
- The instrument, LIN 19/183, 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).
- The instrument repeals LIN 18/173 (F2018L01507) made under subregulation 2.07(5), subitem 1225(5) of Schedule 1 and subclause 417.211(2) of Schedule 2 to the Regulations, 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.
- 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.
- 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 countries or regions that may issue a working holiday eligible passport and any criteria that the passport must meet to be eligible. Furthermore, for the purposes of paragraph 417.211(2)(a) and subparagraph 417.211(2)(b)(ii) of the Regulations, the instrument specifies a younger age for applicants from those specified countries or regions except for France, Canada and Ireland, where the applicant’s age is as prescribed by paragraph 417.211(2)(b)(i) of the Regulations.
- The purpose of the instrument is to increase the eligible age for French applicants for the Subclass 417 (Working Holiday) visa to the maximum of 35 as allowed by the Regulations. The instrument also amends Schedule 2 to the instrument to include reference to a region (in addition to a country) and provide greater clarity for the age requirements.
- The changes will only apply in relation to new applications for a Working Holiday (Temporary) (Class TZ) visa made on or after 1 July 2019. Applications made before 1 July 2019 are subject to the requirements set out in LIN 18/173.
- Consultation was undertaken before the instrument was made as follows:
- Previously, the Department had consulted with tourism industry stakeholders through the Tourism Visa Advisory Group in relation to a decision to increase the eligible age for Subclass 417 (Working Holiday) visa applicants. Additionally, the Department consulted with the Department of Employment, the Department of Foreign Affairs and Trade, the Department of Finance, the Department of the Treasury, the Department of Agriculture and Tourism Australia on the increase of the eligible age.
- The Department (with support from the Department of Foreign Affairs and Trade) commenced bilateral negotiations with the Government of France to secure an agreement for the implementation of the age increase. In-principle agreement with the Government of France was reached in late 2018. Official confirmation by France was received on 24 June 2019.
8. The Office of Best Practice Regulation (OBPR) has 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 July 2019.
Overview
The Migration (LIN 19/183: Arrangements for Working Holiday Visa Applications) Instrument 2019 was enacted to address the need for updating the requirements for making a Working Holiday (Temporary) (Class TZ) visa application, as well as the criteria for a Subclass 417 (Working Holiday) visa. This instrument was made under the Migration Regulations 1994 by the Australian Government, aiming to streamline the application process and ensure it aligns with current policy objectives. The instrument specifies the approved forms and procedures for making a visa application and details the criteria for a Subclass 417 visa, including the eligible countries or regions for issuing a working holiday passport and the age requirements for applicants from those regions. Notably, the instrument increases the eligible age for French applicants to the maximum age of 35 as allowed by the Regulations, thereby addressing a specific gap in the existing framework. These changes are effective for new applications made on or after 1 July 2019, ensuring that the visa application process remains current and responsive to stakeholder feedback and international agreements.
Scope and Application
The Migration (LIN 19/183: Arrangements for Working Holiday Visa Applications) Instrument 2019 applies to individuals and entities involved in the process of making an application for a Working Holiday (Temporary) (Class TZ) visa under the Migration Regulations 1994. This includes applicants who seek to meet the criteria for a Subclass 417 (Working Holiday) visa, and encompasses their eligibility based on passport and age requirements. The instrument specifies the approved forms for application, the place and manner in which applications must be made, and the criteria for eligibility, including the age requirements and the types of passports that qualify applicants. It operates within the Commonwealth jurisdiction and applies to new applications made on or after 1 July 2019. The instrument repeals and replaces LIN 18/173, which governed applications prior to this date. There are no stated exclusions or exemptions within the instrument, although it is subject to the overarching provisions of the Migration Act 1958 and the Migration Regulations 1994. The instrument is supported by subordinate legislation and is exempt from disallowance under section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015.
Key Provisions
The Migration Regulations 1994 (the Regulations) have been amended through the instrument LIN 19/183, which sets out the new requirements for making an application for a Working Holiday (Temporary) (Class TZ) visa. The instrument, made under subregulation 2.07(5), subitem 1225(5) of Schedule 1 and subclause 417.211(2) of Schedule 2 to the Regulations, repeals the previous instrument LIN 18/173, as per subsection 33(3) of the Acts Interpretation Act 1901 (AIA). The instrument specifies the approved forms for making an application (subitem 1225(1) of Schedule 1 to the Regulations) and the place and manner in which an application is to be made (subitem 1225(3) of Schedule 1 to the Regulations). It also details the criteria for a Subclass 417 (Working Holiday) visa, including the eligibility of passports and age requirements for applicants from specified countries or regions (paragraph 417.211(2)(a) and subparagraph 417.211(2)(b)(ii) of the Regulations). The instrument introduces a younger age for applicants from certain countries, except for France, Canada, and Ireland, where the age limit remains as prescribed by paragraph 417.211(2)(b)(i) of the Regulations. These changes apply to new applications made on or after 1 July 2019.
The instrument imposes obligations on applicants for a Working Holiday (Temporary) (Class TZ) visa to ensure they meet the specified criteria, including holding a working holiday eligible passport from an approved country or region, and meeting the relevant age requirements. Additionally, the instrument requires applicants to submit their application through the approved forms and in the specified manner. Failure to comply with these requirements may result in the application being refused or the visa not being granted. The instrument also requires the Department of Home Affairs to ensure that the approved forms and submission processes are clearly communicated to applicants and that the criteria for eligibility are accurately applied in processing applications.
The instrument does not explicitly outline specific offences, penalties, or consequences for breach; however, it is implied that failure to comply with the specified requirements for making an application and meeting the eligibility criteria could result in the application being refused or the visa not being granted. The Regulations themselves may include provisions for penalties and consequences for breaches related to visa applications, such as the imposition of fines or imprisonment. It is essential for applicants to ensure they meet all the requirements set out in the instrument and the Regulations to avoid any potential issues with their application. The instrument is in effect from 1 July 2019, and applications made before this date are subject to the requirements set out in LIN 18/173.