EXPLANATORY STATEMENT
Migration Regulations 1994
Migration (LIN 19/189: Arrangements for certain Business Skills visa) instrument 2019
(Subregulation 2.07(5), Items 1104AA(1), 1104BA(1), 1104B(1), 1112(1), 1113(1), 1202A(1), 1202B(1))
- The Instrument LIN 19/189 is made under subregulation 2.07(5) of the Migration Regulations 1994 (the Regulations), for items 1104AA, 1104BA, 1104B, 1112, 1113, 1202A and 1202B of Schedule 1 to the Migration Regulations1994 (the Regulations).
- The Instrument repeals IMMI 16/106 (F2016L01764) made under subregulation 2.07(5) 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 approved forms for making a valid application for a Business Skills Business Talent (Permanent) (Class EA) visa; Business Skills (Permanent) (Class EC) visa; Business Skills (Provisional) (Class EB) visa; Business Skills (Residence) (Class DF) visa; Distinguished Talent (Migrant) (Class AL) visa; Distinguished Talent (Residence) (Class BX) visa; and Business Skills (Provisional) (Class UR) visa. The Instrument further operates to specify the place for lodgement and the manner in which an application must be made to ensure a valid application is made for the relevant visa class.
- The purpose of the Instrument is to specify the manner in which a Distinguished Talent (Migrant) (Class AL) visa application can be made. In addition to the existing arrangements of lodging an application by post or courier service delivery, the added option, which provides an additional benefit to applicants, is an applicant can lodge an application through the Department of Home Affairs online lodgement portal at the following address: https://immi.homeaffairs.com.au/global-talent-contact-form.
- In accordance with paragraph 15J(2)(e) of the Legislation Act 2003, external consultation was not necessary as the change was of a minor or machinery nature and does not substantially alter existing arrangements. Specifically, an applicant can continue to lodge an application by post or courier service.
- The Office of Best Practice Regulation (OBPR) has advised that a Regulatory Impact Statement is not required (OBPR Reference 25462).
- The officer (Senior Executive Service, Band one, Immigration Programs Division) who made the instrument was delegated the powers required to make the instrument in the Instrument Making Powers (Minister) Instrument 2019 (19/022), signed on 1 July 2019.
- 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 the day after it is registered on the Federal Register of Legislation.
Overview
The Migration Regulations 1994 were enacted by the Parliament of Australia to provide a framework for the administration of migration within the country. The LIN 19/189 instrument, introduced in 2019, was designed to address procedural aspects of visa applications under the Business Skills visa category. This instrument specifically outlines the approved methods for lodging applications for various business skills and distinguished talent visas, ensuring clarity and efficiency in the application process. It allows applicants to lodge their applications either through traditional means such as post or courier or through an online portal provided by the Department of Home Affairs, enhancing accessibility for applicants. The instrument was crafted under the authority granted by subregulation 2.07(5) of the Migration Regulations 1994 and operates to streamline and formalise the application process, ensuring all applicants meet the necessary procedural requirements for their respective visa categories.
Scope and Application
The Instrument LIN 19/189 pertains to the approved forms and procedures for making applications for various Business Skills visas under the Migration Regulations 1994. It applies to individuals seeking to apply for visas such as the Business Skills Business Talent (Permanent) (Class EA) visa, the Business Skills (Permanent) (Class EC) visa, the Business Skills (Provisional) (Class EB) visa, the Business Skills (Residence) (Class DF) visa, the Distinguished Talent (Migrant) (Class AL) visa, the Distinguished Talent (Residence) (Class BX) visa, and the Business Skills (Provisional) (Class UR) visa. This instrument specifies the approved forms for making a valid application, the designated locations for lodgement, and the acceptable methods of submission, including the new option of lodging applications through the Department of Home Affairs online portal, in addition to the traditional methods of post or courier service. The instrument operates on a national level and applies across Australia, aligning with the jurisdictional reach of the Commonwealth. There are no stated exclusions or exemptions within this instrument, but it is noted that the change made by the instrument is of a minor or machinery nature, thereby not necessitating external consultation or a Regulatory Impact Statement. The instrument is exempt from disallowance and does not require a Statement of Compatibility with Human Rights. The instrument becomes effective on the day following its registration on the Federal Register of Legislation.
Key Provisions
The key operative sections of the Instrument LIN 19/189 pertain to the approved forms for making a valid application for various Business Skills visas, including the Business Talent (Permanent) (Class EA) visa, Business Skills (Permanent) (Class EC) visa, Business Skills (Provisional) (Class EB) visa, Business Skills (Residence) (Class DF) visa, Distinguished Talent (Migrant) (Class AL) visa, Distinguished Talent (Residence) (Class BX) visa, and Business Skills (Provisional) (Class UR) visa (subregulation 2.07(5), Items 1104AA(1), 1104BA(1), 1104B(1), 1112(1), 1113(1), 1202A(1), 1202B(1)). These sections specify the manner in which an application must be made and the place for lodgement to ensure compliance with the regulations. For instance, the Instrument now allows applicants to lodge a Distinguished Talent (Migrant) (Class AL) visa application through the Department of Home Affairs online lodgement portal, in addition to the existing options of post or courier service.
The Instrument imposes several obligations on applicants seeking the aforementioned visas. Firstly, applicants must ensure that their applications are made using the approved forms as specified in the Regulations. This includes providing all required documentation and information to support the application. Secondly, applicants must lodge their applications at the correct location, which can be either the online portal, by post, or via courier service. Thirdly, applicants must adhere to any additional requirements or guidelines provided in the Regulations or by the Department of Home Affairs.
Failure to comply with the requirements set out in the Instrument may result in civil or criminal consequences. For example, submitting an incomplete or incorrect application form may lead to the application being rejected, which could delay or prevent the visa grant. If an applicant knowingly provides false or misleading information in their application, they may be subject to criminal charges, including fines or imprisonment. The exact penalties for such offences would depend on the specific circumstances and the relevant provisions of the Migration Act 1958 and other applicable laws. It is important for applicants to carefully review and adhere to the requirements to avoid any potential legal repercussions.