Overview

The Migration (LIN 20/045: Class of persons for Visitor (Class FA) visa applications) Instrument 2020 (F2020L00157) was enacted to address the challenges faced by individuals whose Visitor (Class FA) visas were cancelled due to the risk of a Public Health Emergency of International Concern, as declared by the World Health Organisation. This instrument was introduced in response to the Covid-19 pandemic, providing relief to those in Australia who were former visa holders affected by these cancellations. The instrument was created under subparagraph 1236(2)(a)(iv) of Schedule 1 to the Migration Regulations 1994, which empowers the Minister to specify classes of persons to whom the visa application charge provisions apply. It aims to alleviate the financial burden on eligible applicants by setting the first instalment of the visa application charge amount to nil. The instrument was developed in consultation with the Department of Health and relevant industry stakeholders, ensuring that it addresses the public health concerns while providing necessary support to affected individuals.

Scope and Application

The Migration (LIN 20/045: Class of persons for Visitor (Class FA) visa applications) Instrument 2020 is a specific legislative tool designed to address the unique challenges posed by the Covid-19 pandemic's impact on visa holders in Australia. This instrument applies to former Visitor (Class FA) visa holders who had their visas cancelled due to the World Health Organisation's designation of a Public Health Emergency of International Concern, directly affecting the health, safety or good order of the Australian community or a segment of it. The instrument operates to exempt these particular applicants from the first instalment of the visa application charge, aiming to provide relief and support to those affected by the pandemic's unprecedented circumstances. The instrument's application is national in scope, as it is made under the Migration Regulations 1994 and therefore falls under the Commonwealth's jurisdiction. The instrument does not explicitly state any exclusions, exemptions, or thresholds, but its focus is on a specific group of visa holders impacted by the pandemic. Any further specifications or adjustments to its application are likely to be made through subordinate instruments, ensuring the instrument remains responsive to evolving circumstances.

Key Provisions

The Migration (LIN 20/045: Class of persons for Visitor (Class FA) visa applications) Instrument 2020 (subitem 1222(5)) is a legislative tool designed to address specific circumstances arising from the Covid-19 pandemic. The instrument, which comes under subparagraph 1236(2)(a)(iv) of Schedule 1 to the Migration Regulations 1994, allows the Minister to specify classes of persons to whom certain provisions apply, particularly regarding the waiver of the first instalment of the visa application charge. This instrument targets former Visitor (Class FA) visa holders whose visas were cancelled due to the risk posed by a Public Health Emergency of International Concern, as designated by the World Health Organisation, to the health, safety, or good order of the Australian community or a segment of it. Under the provisions of this instrument, eligible applicants who find themselves in Australia and have had their Visitor (Class FA) visas cancelled due to the aforementioned public health emergency will benefit from having the first instalment of the visa application charge waived. This provision aims to support those who are already in the country and affected by the extraordinary circumstances of the pandemic, by reducing the financial barriers to applying for a new visa. The obligations and requirements imposed by the instrument include the need for affected applicants to meet the specific criteria set out in the instrument, such as being a former Visitor (Class FA) visa holder and having had their visa cancelled due to the public health emergency. The instrument also requires consultation with relevant departments, such as the Department of Health, and industry stakeholders to ensure that the provisions are in line with the health and safety needs of the Australian community. Additionally, the instrument is exempt from disallowance and does not require a Statement of Compatibility with Human Rights, as stipulated under section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015. Failure to comply with the provisions of the instrument may result in civil or criminal consequences, although the specific offences and penalties are not detailed within the instrument itself. However, it is understood that breaches of the Migration Regulations 1994 can lead to significant penalties, including fines and imprisonment, depending on the severity of the breach. The maximum penalties for breaches of the Migration Act 1958 can be substantial, with fines of up to $222,200 for individuals and $1,111,000 for bodies corporate, along with potential imprisonment terms for more serious offences.